Tribunal Criminal Tribunal for the Former Yugoslavia

Page 211

1 Monday, 12 December 2005

2 [Pre-Trial Conference]

3 [The accused entered court]

4 --- Upon commencing at 6.04 p.m.

5 JUDGE MOLOTO: Would the registrar please call the case.

6 THE REGISTRAR: Good afternoon, Your Honours. This is case number

7 IT-95-11-PT, the Prosecutor versus Milan Martic.

8 JUDGE MOLOTO: Appearances.

9 MR. WHITING: Good evening, Your Honours. On behalf of the

10 Prosecution my name is Alex Whiting. I'm joined this evening by

11 Ms. Nisha Valabhji on my right, Mr. Colin Black, and our case manager,

12 Ms. Lakshmie Walpita.

13 JUDGE MOLOTO: Thank you. For the Defence.

14 MR. MILOVANCEVIC: [Interpretation] Good evening, Your Honours. I

15 am attorney-at-law Predrag Milovancevic, counsel for Mr. Milan Martic. I

16 hail from Belgrade. I'm joined by my co-counsel, attorney-at-law Vuk

17 Sekulic.

18 JUDGE MOLOTO: Thank you. What is the situation about the

19 accused. Is that Mr. Martic at the back?

20 MR. MILOVANCEVIC: Yes. Yes, Your Honour.

21 JUDGE MOLOTO: If I could put a few questions to Mr. Martic before

22 we start.

23 Mr. Martic, how are you in health?

24 THE ACCUSED: [Interpretation] I don't like to talk about this

25 matter, but I am fine, I suppose you could say.

Page 212

1 JUDGE MOLOTO: You have no complaints about your detention

2 circumstances?

3 THE ACCUSED: [Interpretation] No, no objections. As for the rest,

4 you could say that everything is fine.

5 JUDGE MOLOTO: Thank you very much. Thank you. Can I just make

6 sure that we all have the same copy of the agenda. Mr. Whiting, do you

7 have a copy of the agenda?

8 MR. WHITING: I do, Your Honour. It was e-mailed to us. It's

9 dated today 12 December 2005.

10 JUDGE MOLOTO: That's correct. And you too, Mr. Milovancevic.

11 MR. MILOVANCEVIC: [Interpretation] Yes, Your Honours, we do have

12 an agenda.

13 JUDGE MOLOTO: Thank you very much, Mr. Milovancevic. Thank you,

14 sir.

15 Okay. Now, can I confirm also that we are all using the Second

16 Amended Indictment, supposedly dated the 14th of July, 2003, which was

17 filed by the Registry on the 9th of December to correct an error in the

18 pagination. Is that correct?

19 Mr. Whiting.

20 MR. WHITING: Yes, Your Honour. That is the -- that's the

21 operative indictment, and, to be clear, it's my understanding, as I'm sure

22 it is the Court's understanding, that the version that was filed just a

23 few days ago is identical to the version that has been in existence since

24 the 14th of July, 2003, just -- there was -- as the Court indicated, an

25 issue about the pagination.

Page 213

1 JUDGE MOLOTO: Okay. And you confirm that, Mr. Milovancevic?

2 MR. MILOVANCEVIC: [Interpretation] Your Honours, we have the

3 Second Amended Indictment in front of us, the one that was now referred

4 to. Thank you.

5 JUDGE MOLOTO: Thank you so much. Under item 4, proceedings in

6 Croatia against the accused concerning Zagreb bombing, I just -- the

7 Tribunal has been advised at the provisional hearing on the 23rd of

8 September 2003 this issue of the indictment against the accused and his

9 conviction in absentia was discussed. Now, as far as the Trial Chamber

10 has been able to assert -- know or pursuant to Rule 13 has been issued,

11 could the Prosecution and the Defence clarify this matter for the Trial

12 Chamber, please.

13 MR. WHITING: Yes, Your Honour. The -- the conviction in absentia

14 that the Court is referring, I believe, at least the one that was

15 discussed in context of provisional release does not relate to the Zagreb

16 bombing in 1995. It relates to events that occurred in Croatia in 1990

17 and 1991. The actual judgement of the court was attached to the accused's

18 motion for leave to appeal the provisional release decision of the Trial

19 Chamber. So it is -- the decision of the Court in Croatia is actually in

20 the record.

21 I have it in front of me and I don't believe -- it pertains

22 basically to the role of the accused and others in creating a separate

23 state within Croatia and splitting away in violation of the constitution

24 and the laws of Croatia. It does not pose any problem from our

25 perspective, in our view, with respect to proceeding on this indictment

Page 214

1 under the Statute. There is no -- it did not address the crimes that are

2 charged in the indictment that is here before this court and that

3 therefore we would see no prohibition on proceeding with the indictment

4 that's before this Court.

5 JUDGE MOLOTO: Thank you very much. Do you have any comment to

6 make on that, Mr. Milovancevic?

7 MR. MILOVANCEVIC: [Interpretation] Your Honours, I confirm what my

8 learned friend from the OTP has just said. That indictment contains no

9 reference to the shelling of Zagreb. I would like to point out that these

10 criminal proceedings against our client, Mr. Martic, was one of the

11 numerous proceedings in absentia. The former President of the Tribunal

12 and the Human Rights Watch pointed out that the circumstances of those

13 proceeding were filed from equitable -- and the charges were based on the

14 ethnic affiliations of those accused. This is a fact that our client

15 proposed as something that was in his favour when he spoke about Croatia

16 and the country in which he resided before he arrived at the Tribunal.

17 Besides, this was a trial in absentia for terrorism and for insurrection

18 against the constitutional order of a country.

19 That would be all. Thank you.

20 JUDGE MOLOTO: Thank you very much.

21 [Microphone not activated] ... with the Pre-Trial Conference.

22 Now, there are guidelines on the standards governing the admission of

23 evidence. Now, there is a document that I believe has been circulated.

24 Let me just confirm. Do you have a copy it have, Mr. Whiting?

25 MR. WHITING: Yes. We received it just before this Pre-Trial

Page 215

1 Conference.

2 JUDGE MOLOTO: And, Mr. Milovancevic, do you have a copy?

3 MR. MILOVANCEVIC: [Interpretation] Yes, Your Honour. We received

4 a copy some minutes ago. Thank you.

5 JUDGE MOLOTO: Can we record that the parties are agreed that that

6 will form the guidelines for standards governing the admission of

7 evidence, or do the parties want to read it before you make any comments?

8 MR. WHITING: Your Honour, I'm confident that we will have few, if

9 any, suggestions, but if we could have an opportunity to read it I would

10 appreciate it, and we could make comments perhaps to the Court tomorrow,

11 in the session tomorrow afternoon.

12 JUDGE MOLOTO: Do you agree with that, Mr. Milovancevic?

13 MR. MILOVANCEVIC: [Interpretation] Yes, I do, Your Honour. I

14 believe this is a fair suggestion. Up until this time, we were not aware

15 of this document. I believe these are relevant questions that will in

16 more than one way define the proceedings before this Chamber. I think the

17 Defence team must familiarise ourselves with everything contained in this

18 document.

19 JUDGE MOLOTO: Very well, then. Then we'll postpone any decision

20 on the guidelines until tomorrow. Thank you very much.

21 [Trial Chamber confers]

22 JUDGE MOLOTO: On the question of agreed facts, it seems that both

23 parties submitted some annexes to the pre-trial briefs concerning agreed

24 facts but that the Prosecution on the 2nd of November, 2004, indicated

25 that the annexes correctly reflected the agreement reached between the

Page 216

1 parties. Do you confirm that, Mr. Whiting?

2 MR. WHITING: Yes, Your Honour the correct document reflecting the

3 agreed facts is in fact the annex that is attached to the Defence

4 pre-trial brief. That reflects the agreed facts in this case.

5 JUDGE MOLOTO: I probably am -- was a little amiss, but I haven't

6 seen a copy of the agreed facts as presented by the Defence. I don't

7 know. Let me just find out from my colleagues if they do have it.

8 [Trial Chamber confers]

9 JUDGE MOLOTO: It doesn't look like the Chamber has copies of that

10 document. It would be appreciated if a copy could be made available.

11 Mr. Milovancevic.

12 MR. MILOVANCEVIC: [Interpretation] Your Honours, in reply to the

13 OTP's pre-trial brief on the 7th of May, 2004, the Defence addressed also

14 the agreed facts referred to in the OTP's pre-trial brief. As for these

15 agreed facts, I believe they cannot be challenged as they were stated.

16 Both the OTP and the Defence agree with that. This has been indicated in

17 both the OTP pre-trial brief and our reply. Unfortunately, I do not

18 presently have a copy of our reply, but we can certainly make an effort

19 and have a copy delivered to the Trial Chamber unless there is another

20 motion from the OTP or from us. But certainly we can do this for you,

21 Your Honour.

22 JUDGE MOLOTO: Thank you very much. We have just had a copy

23 handed up to the Chamber. It is a bit illegible. We would appreciate a

24 clearer copy, particularly because two other copies have to be made

25 hopefully out of this.

Page 217

1 MR. WHITING: That's the -- Your Honour, I apologise that it's

2 illegible. It's the only copy I have available to me, but I will

3 certainly endeavour to get a more legible copy provided to the Chamber.

4 JUDGE MOLOTO: Thank you very much. When do you think you can do

5 that, Mr. Whiting?

6 MR. WHITING: Well, certainly first thing tomorrow morning it

7 could be provided, if that's agreeable to the Chamber.

8 JUDGE MOLOTO: Thank you so much, Mr. Whiting. If you could

9 provide us with three copies tomorrow.

10 It looks like at the Rule 65 ter Conference held on the 14th of

11 September the parties stated that they couldn't come any nearer than the

12 agreed facts as stated in the Defence's statements. Is it still the

13 position? Are the parties not in any position to come any closer?

14 MR. WHITING: Your Honour, that's correct. It's still the

15 position that I don't believe we would be able to agree on any additional

16 facts. It is, of course, often the case, I think, that as trial starts

17 and the trial progresses areas of dispute are further identified and

18 likewise areas of potential agreement are also identified. So we will

19 always be on the lookout, as I'm sure the Defence will as well, for

20 possibilities of further agreement once the trial starts and progresses.

21 JUDGE MOLOTO: Is that the position of the Defence, too,

22 Mr. Milovancevic?

23 MR. MILOVANCEVIC: [Interpretation] Your Honours, in order to

24 understand this situation about the agreed facts, it is important to keep

25 in mind the circumstance that the OTP proposed to the Defence 45 items to

Page 218

1 agree upon. I think nearly 30 have been agreed, which is more than a few.

2 These are important facts, and I believe this will greatly contribute to

3 expedite these proceedings.

4 At a Status Conference in September 2005, as Defence counsel for

5 the accused Mr. Martic, I indicated to the Pre-Trial Judge the possibility

6 that the Defence may offer to the OTP another set of facts to be agreed.

7 This was in relation to augmenting the 65 ter exhibit list expanded by the

8 Prosecution in their motion on the 19th of August 2005, now comprising 719

9 exhibits. On this occasion, the Pre-Trial Judge wanted the Defence to

10 give him a figure how long we would need to analyse this new material and

11 documents, and reach a decision on what could be agreed and what could

12 not.

13 We now know that this is over 6.600 pages of written documents,

14 which pursuant to a proposal by the OTP will be tendered into evidence

15 during the trial of Mr. Martic. Unfortunately, we are still facing a

16 variety of problems that make it very difficult for us to review these

17 documents.

18 This is an extensive explanation that I've just provided, but I

19 believe that one has been overdue. I did tell the Pre-Trial Judge that

20 once we have studied the documents we would do our best to achieve the

21 objectives. Thank you.

22 JUDGE MOLOTO: Thank you, Mr. Milovancevic. If you can just try

23 to stick to brief answers, Mr. Milovancevic, at this stage, because we

24 just wanted to find out what the position was in terms of the parties

25 coming closer to one another on agreed facts.

Page 219

1 Two things that the Bench -- the Chamber would like to ask the

2 parties about. There may be more, maybe, from my colleagues. Is it not

3 possible for the parties to agree on a list of victims, for instance? Mr.

4 Whiting?

5 MR. WHITING: That's certainly -- one would think that would be an

6 area that we could agree on, and we would be happy to agree -- that

7 pertains specifically to certain reports concerning exhumations and

8 there's -- we have an expert with respect to that, so that would certainly

9 be -- we would be open to that.

10 JUDGE MOLOTO: Mr. Milovancevic, very briefly, is that an issue

11 that the Defence would be disposed to negotiating?

12 MR. MILOVANCEVIC: [Interpretation] A brief answer would be yes,

13 under specific circumstances. The original indictment contained the names

14 of victims but provided no personal details on those victims, their birth

15 years and so on and so forth. We have a new list of victims now with this

16 information entered later on. However, this is an enormous amount of

17 documents to go through.

18 I will endeavour to do that. I will enlist the help of an expert

19 just like the OTP has. I believe at this point in time this will prove to

20 be a tall order but that doesn't necessarily mean that will not be attempt

21 to go do so once the trial itself gets going. Thank you.

22 JUDGE MOLOTO: Thank you very much. Then the parties are urged to

23 try and negotiate that list and try to come to an agreement on it as the

24 trial goes on. The Chamber will keep asking about progress in that

25 regard.

Page 220

1 The other issue that the Chamber thought of asking the parties

2 about is whether the parties would agree that there was or there was no

3 conflict in the relevant territories to this case.

4 Mr. Whiting?

5 MR. WHITING: Yeah, of course. Certainly from the point of view

6 of the Prosecution that's something that we would welcome. I have no look

7 again at the agreed facts. It may be in some degree already addressed in

8 some respects on the agreed facts, but it could be something that probably

9 could be agreed upon further. But of course the Prosecution would be

10 happy to have that agreed on.

11 JUDGE MOLOTO: Are you able to remember offhand, Mr. Milovancevic,

12 whether that was one of the issues agreed to by the parties, or whether it

13 can be negotiated if it wasn't one of them?

14 MR. MILOVANCEVIC: [Interpretation] Your Honour, in order for you

15 to understand our position, I will say this briefly: This is an

16 indictment -- this is an indictment that encompasses the time period

17 between 1990 and 1995. In 1991, even 1992, there is only one subject of

18 international law. In the meantime, new subjects created. What is the

19 nature of this conflict? Who are the warring parties? Which territories

20 encompassed. This is a difficult and highly complex legal and factual

21 issue.

22 In any case, that is precisely the reason why this trial is now

23 under way, because this was a conflict, which is a fact. However, these

24 facts are material to the Defence and to our position. It would be

25 premature for us to put forward a position now in the sense that you have

Page 221

1 now requested, if my understanding of what you have just said is correct,

2 Your Honour.

3 JUDGE MOLOTO: Yes. One of maybe the reasons why the Chamber was

4 asking the question, Mr. Milovancevic, is it seems at a provisional

5 release hearing on the 26th of September, 2003, the accused stated that he

6 admitted to the bombing of Zagreb, "for reasons which I hope will be

7 understood why I did this." I'm not quite sure whether the Defence is

8 able to state at this stage what the status of that statement would be and

9 what impact it may have on the case.

10 Mr. Milovancevic?

11 MR. MILOVANCEVIC: [Interpretation] By your leave, Your Honour, I

12 will try to be brief. The debate concerning provisional release of my

13 client was conducted in 2003. The second motion for leave to grant

14 provisional release was delivered in May 2002, but there was no reply.

15 However, there was someone else representing the accused Mr. Martic.

16 There was another counsel back in 2003. My client was represented by a

17 counsel with whom he very soon after parted ways with.

18 One thing that cannot be challenged are the posts and positions

19 that the accused occupied at the time. He was the president of the

20 Republic of Serbian Krajina. What exactly happened and how, at least that

21 is the position of the Defence team now, is something for which certain

22 facts will need be established but also legal issued raised relating to

23 international law of war and conflict.

24 That is as much as I can say for the time being, Your Honour. My

25 colleague has just suggested the following: The Status Conference that

Page 222

1 you referred to was back in 2002. The accused surrendered in May 2002.

2 Soon after, this Status Conference was held. I made an error. I said the

3 first Status Conference took place in 2003 but in fact it took place in

4 2002. That's one correction that I wish to enter for the record.

5 JUDGE MOLOTO: Thank you very much, Mr. Milovancevic. I would

6 imagine from what you have said what can be said about that statement at

7 this stage is that the Defence is not expressing any position on that

8 statement at this stage. Am I right, just in one word, Mr. Milovancevic?

9 MR. MILOVANCEVIC: [Interpretation] You have understood me

10 correctly, Your Honour. At this point in time, we think it is too early

11 to give our final and definite position, which doesn't mean that at a

12 later point we will not do so. Thank you.

13 JUDGE MOLOTO: Thank you. Okay. Can we --

14 [Trial Chamber confers]

15 JUDGE MOLOTO: Okay. Can we then move to the next item, item 7,

16 the Prosecution's decision not to lead evidence regarding certain parts on

17 Bosnia and Herzegovina.

18 The Prosecution indicated that it would not lead evidence

19 pertaining to crimes committed in certain parts of Bosnia and Herzegovina,

20 namely that part that I'm not able to pronounce, Prnjavor, Sipovo, and

21 Bosanska Gradiska. However, some people who give evidence on those crimes

22 be still scheduled to appear. It also appears that there might be some

23 documentary evidence and the Prosecution should therefore -- I just want

24 to find out from the Prosecution what the position is with regard to the

25 evidence pertaining to these areas. I am aware of the notification that

Page 223

1 was filed bill the Prosecution to withdraw some of the evidence, but it

2 looks like there are still some other witnesses or some other evidence

3 that sort of relates to those areas. Is the Prosecution able to clear

4 that up?

5 MR. WHITING: Yes, Your Honour. In the notice that the Court

6 referred to, the Prosecution, as the Court said, elected -- has elected,

7 for reasons of just expediency in trying to shorten the case and

8 streamline it, not to pursue certain crimes in Bosnia-Herzegovina. We

9 tried to -- we had intended to drop all the witnesses that related to

10 those crimes; however, I see that there are two that -- two additional

11 witness that could be dropped and those -- on that -- on the schedule

12 attached to that notice it's number 9, which is MM009, and Witness number

13 MM015. All of the other witnesses, however, pertain to crime bases or

14 crimes that are -- that continue to be pursued by the Prosecution. Those

15 are the only two witnesses, I believe, that can be dropped.

16 It is true that there are no doubt some documents, though probably

17 not very many, that pertain to these crime bases that could also be

18 dropped. We have not undertaken the exercise to go through and identify

19 those documents on the exhibit list.

20 I will say just to be clear that the joint criminal enterprise

21 that is charged still includes members of the Bosnian Serb leadership, and

22 there still will be some evidence pertaining to their participation in the

23 joint criminal enterprise, and some -- and many of the documents and some

24 of the witnesses will touch on that, and then of course there is one area

25 of Bosnia and Herzegovina that remains in the indictment.

Page 224

1 JUDGE MOLOTO: Can I -- before you sit down, Mr. Whiting, can the

2 Chamber accept that the Prosecution is formally withdrawing witnesses

3 MM009 and MM015 or --

4 MR. WHITING: Yes, that's correct, Your Honour.

5 JUDGE MOLOTO: Formally withdrawing them.

6 MR. WHITING: Yes, Your Honour.

7 JUDGE MOLOTO: Thank you very much. The question of opening

8 statements. I suppose under this point what the Chamber would like to get

9 an idea of is how long the Prosecution anticipates the presentation of the

10 opening statement would take.

11 MR. WHITING: Your Honour, I expect my opening to be less than the

12 day tomorrow, and I think considerably less. I expect it to be

13 approximately -- it will be between two and three hours is my

14 approximation. I haven't read through it and timed it but that's my

15 guess. But certainly considerably less than the full day.

16 JUDGE MOLOTO: Thank you very much.

17 And, Mr. Milovancevic, does the Defence confirm what the Chamber

18 has come to hear, that the Defence elects to make its opening statement,

19 if any at all, at the opening of the Defence case?

20 MR. MILOVANCEVIC: [Interpretation] Yes, Your Honour, that's

21 correct. The Defence will not use the opportunity envisaged by Rule 84,

22 namely to present their opening statements after the opening statement of

23 the Prosecution. We plan to do that at the beginning of our case, upon

24 the conclusion of the Prosecution case.

25 However, I wish to inform the Trial Chamber that the accused,

Page 225

1 Milan Martic, wishes to avail himself of his right envisaged in Rule 84

2 bis to use up a bit of time, about 45 minutes, after the conclusion of the

3 Prosecution opening statement, to give his own opening statement under the

4 guidance of the Trial Chamber.

5 And another comment with your permission, Your Honour. In view of

6 the information given to us by our learned friends from the Prosecution,

7 namely Mr. Whiting, that his opening statement will take two to two and a

8 half hours, of course it's different to know exactly how long it would

9 last. I think that it would be possible for the accused, Mr. Martic, to

10 give his opening statement tomorrow. I believe that there will be a

11 sufficient time for that.

12 JUDGE MOLOTO: Thank you very much, Mr. Milovancevic.

13 [Microphone not activated]

14 May not be a need for the Chamber to sit if it happens the way you

15 suggested. Thank you very much. Can we move on then to item 9 --

16 outstanding motions. This is the motion -- Prosecution's motion to amend

17 its 65 ter witness list. Is that correct? I just wanted to say that a

18 decision will be rendered as soon as possible on -- a decision would be

19 rendered as soon as possible on this motion if it hasn't been distributed.

20 And then there was also the Prosecution -- did you want to say

21 something?

22 MR. WHITING: I think we received a decision on that motion. It's

23 been distributed, yes.

24 JUDGE MOLOTO: Thank you very much. And what about the decision

25 on the Prosecution's motion for admission of witness statements pursuant

Page 226

1 to Rule 92 bis?

2 MR. WHITING: There we have not received a decision Your Honour.

3 JUDGE MOLOTO: It will be handed down fairly soon, okay?

4 The Chamber is aware of the fact that the Prosecution has not

5 produced full statements of some of the Prosecution witnesses. Is that

6 correct, Mr. Whiting?

7 MR. WHITING: Your Honour, this is a matter on which various Trial

8 Chambers have different views and so we'll be guided by this Trial Chamber

9 and its preferences. Some Trial Chambers don't want the full statements

10 of Prosecution witnesses; others do. If it's this Chamber's desire to

11 have the prior statements of the witnesses who will testify, that's

12 something that we can undertake to provide to the Chamber in some kind of

13 a systematic way. With the understanding that with some witnesses that

14 will be voluminous material. There are witnesses who have -- who not only

15 have an ICTY statement but who have testified in previous trials or who

16 have multiple statements. So in some cases that could be voluminous, but

17 that's no problem to provide to the Court in some form, perhaps

18 electronic, perhaps hard copy, whatever the preference is.

19 I'm sorry. I'm sorry, Your Honour. My colleague has just

20 indicated that perhaps the Court is asking about -- is referring to

21 delayed disclosure of some witnesses.


23 MR. WHITING: Okay. Well, there are certain witnesses for whom

24 delayed disclosure as a protective measure was granted, and I believe in

25 every case it was -- what was ordered was that the Prosecution disclose

Page 227

1 the prior statements of the witnesses to the Defence 30 days before the

2 witness testifies and that's something that we're mindful of and we'll do.

3 As the case progresses we will disclose that's statements to the Defence.

4 Now, that, again, is a separate matter from whether the Trial Chamber

5 wants to have the statements disclosed to it.

6 JUDGE MOLOTO: It wasn't my understanding that we wanted the

7 statements disclosed to the Trial Chamber, it was just for them to be

8 discovered to the opposite party.

9 MR. WHITING: I understand. That's something we're mindful of and

10 as the schedule -- as we determine the schedule of witnesses, we're aware

11 of the 30-day requirement. In cases -- in one case I think ten days has

12 been ordered, and we will keep up with that schedule and make sure we

13 comply with those orders.

14 JUDGE MOLOTO: Thank you very much, Mr. Whiting.

15 [Trial Chamber confers]

16 JUDGE MOLOTO: I believe there is also a practice of [Microphone

17 not activated] - I'm sorry - proofing notes which are usually given a day

18 before a witness testifies.

19 MR. WHITING: Your Honour, that -- that's something that's been

20 followed in some cases and not in others, and it was not our -- it was not

21 our intention -- in the last trial I just finished, it's not something

22 that we did nor was required. It was not my intention to do it in this

23 case. What we do do, of course, is when we meet with witnesses before

24 they testify and prepare their testimony, if there are matters that arise

25 in those discussions, for example, new -- new information or any changes,

Page 228

1 substantial changes in information, that of course is disclosed

2 immediately to the Defence by way of a memo.

3 JUDGE MOLOTO: Thank you. Before the Chamber makes a ruling,

4 let's just find out what the attitude of the Defence is on the point.

5 MR. MILOVANCEVIC: [Interpretation] Your Honours, when it comes to

6 witnesses with protection measures, it is true that the Prosecution has an

7 obligation to deliver to the Defence 30 days before the trial commences

8 information about their identity. We're now facing two issues here, from

9 what day the 30-day period starts running and another issue which is much

10 more important and which would significantly improve the efficiency of our

11 work and make the life of the Defence much easier, and this is the list of

12 the witnesses that the Prosecution could disclose to the Defence so that

13 the Defence could plan its time, organise its work, study all the issues

14 in a timely manner.

15 Thus we expect the Trial Chamber to be along -- to pass a decision

16 along those lines, to issue an order that would cover all of these issues.

17 It would also be very useful for the Defence to know 30 days in advance

18 the chronology of the proposed testimony. And the same will apply for us

19 once we begin with our case. It would be good for the Defence to have an

20 idea at least what is planned. We understand that not everything can be

21 envisaged in advance, that not all of the details can be planned ahead,

22 but whatever is possible to be disclosed should be disclosed to us now to

23 facilitate our work. Thank you.

24 MR. WHITING: Your Honour, if I may. Your Honour, if I could

25 address some of the points raised by Defence counsel.

Page 229

1 With respect to the starting point for the 30-day disclosure, the

2 order of the Court is it's 30 days before the witness testifies, and

3 that's what -- the practice that we will be following.

4 With respect to witness order, we will do our best to provide the

5 witness order that -- as we know it in a timely fashion. 30 days is

6 not -- is not very realistic. It's just impossible with various witness

7 schedules and issues in terms of scheduling that come into play, it's

8 impossible to know 30 days in advantage. We'll know certainly I believe

9 before Christmas we'll know who our first several witnesses will be in

10 January, and then we will keep the Defence updated as we schedule

11 witnesses, and that will always be one or two weeks ahead of time.

12 This case is not so big that we -- it's only going to last for a

13 few months. It only has 40 or 50 witnesses. It's not so big that I think

14 it's necessary to have -- to try to impose 30 days ahead of time. I don't

15 think that's ever been done in a trial.

16 Finally, with respect to the proofing summary, the Prosecution of

17 course has provided summaries, 65 ter summaries of all of its witnesses.

18 It expects the witnesses to testify largely according to those summaries

19 and is happy to indicate to the Court if there's going to be any deviation

20 from those summaries. Frankly, preparing a proofing sum Rule while you're

21 trying to prepare the witnesses who are here for a limited amount of time

22 and to keep the trial going can be quite an onerous burden on top of

23 having to provide the -- on top of having already provided the 65 ter

24 summary.

25 JUDGE MOLOTO: Let me just say thank you very much, Mr. Whiting,

Page 230

1 for first of all responding to the issues raised by Mr. Milovancevic but

2 also for the last point you make, which is actually what was under

3 discussion. Thank you.

4 Yes, Mr. Milovancevic.

5 MR. MILOVANCEVIC: [Interpretation] Your Honour, with your

6 permission I would like to raise an issue which seems to be quite

7 important to me. It has to do with the status of some of the motions of

8 the Prosecution. It is expected that they will be ruled upon soon.

9 However, at the 65 ter Conference held on the 22nd of November, we learned

10 that there is a large number of the Prosecution motions relating to 94

11 bis, which has to do with the experts, and Rule 92 bis.

12 At the meeting, I raised an issue which is quite an important. It

13 is first and foremost a problem for the Defence, but I think it's also

14 relevant to the Trial Chamber. We do not know what status 28 witnesses

15 have. These are the witnesses that in accordance with the OTP motion will

16 be involved under Rule 94 bis. This was raised in the OTP motion

17 submitted in February of 2005.

18 We responded to all of these motions. However, it is quite

19 difficult for us to envisage how much work this will entail, because at

20 this point in time we still do not know what these witnesses will be

21 testifying about and whether we will be at all given an opportunity to

22 cross-examine these witnesses.

23 These are the issues that are outstanding, that need yet to be

24 resolved and that will greatly reflect both the work of the Defence and

25 the Prosecution.

Page 231

1 Another issue now that we're dealing with witnesses is this:

2 Your Honours, we heard what the Prosecution said today about three

3 locations in Bosnia. I'm not quite sure that I made accurate notation

4 when it comes to Prnjavor, Sipovo, and Bosanska Gradiska. We do not

5 understand whether the Prosecution will drop charges regarding these

6 locations or the Prosecution namely is withdrawing the witnesses who are

7 to testify about these locations.

8 Another problem is that in their pre-trial brief, the Prosecution

9 says that certain cases mentioned in the indictment are just examples or

10 samples of the acts attributed to the accused through joint criminal

11 enterprise. So this is a very delicate issue for the Defence.

12 Based on what my learned friend Mr. Whiting said today, we took it

13 that the Prosecution will simply withdraw these witnesses but that the

14 facts named in the indictment and the pre-trial brief remain in force.

15 Therefore, I would like to be given a clarification, and I apologise in

16 advance if I misunderstood some of what was said today. I would need to

17 know the answer to this query. Thank you.

18 JUDGE MOLOTO: Mr. Milovancevic, thank you so much for raising

19 that issue. You just ran one little step ahead of the Chamber. We were

20 going to get to the 92 bis and 94 bis issues.

21 I suppose as regards the Prosecution's decision about the charges

22 relating to those areas that they say they are not going to lead evidence

23 on, Mr. Whiting can perhaps tell us whether he's dropping the charges or

24 just withdrawing the witnesses.

25 Mr. Whiting.

Page 232

1 MR. WHITING: Your Honour, what we are doing is just withdrawing

2 the witnesses. We're just not going to lead evidence on those specific

3 charges.

4 Dropping the charges would require amending the indictment which

5 is a slightly complicated process and I don't think would -- it would take

6 a lot of time and wouldn't advance anything. So it -- the same effect is

7 achieved by simply not pursuing those -- the evidence on those charges.

8 But again to be clear because it was raised I think by Mr. Milovancevic,

9 we do still allege the joint criminal enterprise as it is charged in the

10 indictment and as it is described in the pre-trial brief.

11 JUDGE MOLOTO: Thank you.

12 JUDGE NOSWORTHY: [Microphone not activated] -- you are

13 withdrawing the charges in substance.

14 MR. WHITING: Well, in substance the effect is that, Your Honour,

15 but those charges, of course, are mixed together with charges that are

16 remaining. So, for example, there is no count of the indictment that is

17 being dropped. There are just parts of counts. So, for example, there

18 are murders. There is a series of murders that are alleged in the

19 indictment and they are all charged as a count of extermination and

20 murder. Some of those murders. The ones that occurred in Bosnia and

21 Herzegovina in those particular areas that are identified will not be

22 pursued, but the other murders are still going to be pursued. So the

23 count remains in the indictment.

24 So all the counts remain. All the counts will be proven, it's

25 just parts of counts and evidence related to certain counts that will not

Page 233

1 be pursued. I hope I have been clear.

2 JUDGE NOSWORTHY: You were very clear, but it seems to me also

3 that you would have to go through each very carefully, and maybe at the

4 end of the day consider what courses you are going to drop in all fairness

5 to the accused in respect to those.

6 MR. WHITING: I appreciate Your Honour, and I am certainly mindful

7 to be fair to the accused and to alert the accused what we're doing here

8 and what we're not pursuing, and I hope we have been clear in that regard.


10 MR. MILOVANCEVIC: [Interpretation] Your Honours, with your

11 permission. The accused must understand the charges against him. We are

12 currently trying to establish the number of witnesses. It used to be 79,

13 and perhaps once these witness are withdrawn the number of witnesses will

14 be reduced. However, Mr. Whiting just told us that the substance of the

15 indictment remains the same. The counts remain as they were, which means

16 that maybe the number of witnesses will remain the same, but they will be

17 testifying about different events. However, whatever the case, the

18 indictment must be clear to us. We must know what we have to defend

19 ourselves against. We have to know what our client is charged with.

20 Therefore, the Prosecution needs to bring their pre-trial brief in

21 conformity with the new indictment, because we cannot be expected to get

22 what is it that the Prosecution is trying to say. It would be a very

23 dangerous situation for the Defence. And in that regard, I fully agree

24 with the view of the Trial Chamber, but I think it needs to be reiterated.

25 I think that we must have a completely clear situation whether it comes to

Page 234

1 the rights of the accused. He must know exactly what he's charged with.

2 Another matter. My learned friend Mr. Whiting said that these

3 three locations are related to the so-called joint criminal enterprise,

4 and the nature of this enterprise is described in such a way that the

5 leadership of Bosnian Serbs and some other people who are tried here

6 before this Tribunal have been accused for the same acts as the accused

7 Martic. Therefore, there is the responsibility that these locations that

8 are dropped in this case will be complemented by some other witnesses who

9 will be testifying about other events.

10 I am raising this so that we can all get some idea about the

11 amount of work where -- that we will be faced with here. Perhaps

12 everything is clear to the Prosecution, but the Defence and Trial Chamber

13 must also fully understand the intentions of the Prosecution.

14 Perhaps I took a bit too long, Your Honours, but I was just trying

15 to explain the situation as we see it. Thank you.

16 JUDGE MOLOTO: Thank you.

17 Mr. Whiting, do you want to take a second bite of the cherry to

18 try and explain yourself, or --

19 MR. WHITING: Your Honour, you read my mind. That's exactly what

20 I'd like to do.

21 Your Honour, as the Court is aware but I'm not sure if Defence

22 counsel has this at hand, the Prosecution filed on the 23rd of November a

23 revised list of witnesses, and I hope that is something that's

24 available -- been made available, served on the Defence. That list has 65

25 witnesses, not 79. And as indicated by the Prosecution at the beginning

Page 235

1 of the session this evening, we've dropped two more. So we're down to 63

2 witnesses.

3 What we have indicated in that filing is that we will not pursue

4 any matters related to Prnjavor, Sipovo, and Bosanska Gradiska. What that

5 means very simply, and it's not complicated, is that where there are

6 references to those three places in the indictment, evidence will not be

7 led.

8 So for example, in paragraphs 35 and 36, there are murders alleged

9 in those places. We will not lead evidence on those paragraphs. So

10 it's -- it is a very simple matter, and I agree that the Defence has to be

11 on notice about what the case is going to be, but it is frankly a very

12 simple matter to now look again at the indictment and at the pre-trial

13 brief to see what is no longer going to be pursued by the Prosecution. It

14 is simply the matters related to those three areas, end of story.

15 JUDGE MOLOTO: Thank you. I hope that is now clear.

16 MR. MILOVANCEVIC: [Interpretation] Your Honours.

17 JUDGE MOLOTO: Yes, Mr. Milovancevic.

18 JUDGE NOSWORTHY: Is it something new or is it by extension? Is

19 it something new or is it by extension?

20 MR. MILOVANCEVIC: [Interpretation] Just about this last sentence

21 of my learned colleague, if I may. I have a great concern that what the

22 OTP has just suggested is legally impossible. There can be no indictment

23 in relation to three different places and killings without evidence. The

24 OTP has just informed us that they abide by the allegations of the

25 original indictment and the relevant paragraphs but that there will be no

Page 236

1 evidence to support those allegations.

2 Now, how are we to understand that, Your Honour? Either those

3 locations and the relevant paragraphs are part of the indictment and are

4 dealt with, or, if the OTP has no supporting material, let them give the

5 whole thing up.

6 I must say I'm trying to understand the legal logic behind this,

7 that is at work here. It seems that facts are irrelevant whether

8 something is proven or not. I'm merely talking about what the OTP has

9 just informed us about. Whenever there is evidence to Prnjavor, Sipovo,

10 and Bosanska Gradiska and the killings at those locations, we will not be

11 bringing any evidence but however the indictment stays as it is. What is

12 the Defence supposed to do with such an indictment and with these

13 paragraphs. Thank you.

14 JUDGE MOLOTO: Mr. Milovancevic, I'm not quite sure what the

15 problem to the Defence is. Obviously the Prosecution has drafted its

16 indictment in the manner in which it has done, and it has alleged crimes

17 taking place at various places. If its in wisdom the Prosecution decides

18 not to call evidence that relates to certain areas, that goes to the

19 question of proof of those allegations irrespective of whether or not they

20 were on the indictment.

21 I don't think that it is something that we should be taking too

22 much time on. If they have not proved the commission of those crimes in

23 these specific areas it's up to the Defence to argue so at the end of the

24 trial. I don't think we can dictate to the Prosecution to withdraw those

25 charges simply because it decides not to lead evidence on those instances.

Page 237

1 Okay. I think that will close that point.

2 In the interests of trying to limit the duration of the trial, I'm

3 going to try and press a little harder on you, Mr. Whiting. To the extent

4 that any of the witnesses that the Prosecution intends to call

5 corroborating other witnesses, is it not possible to that extent to bring

6 in 92 bis evidence of those corroborating witnesses?

7 MR. WHITING: Your Honour, we have tried to do that as much as

8 possible, and we have asked, of course, the Court to accept under Rule 92

9 bis a considerable number of witness statements, and as -- with respect to

10 certain -- with respect to each crime base, as it's referred to, we

11 have -- we typically have one -- no, not one two, two or three witnesses

12 coming to testify live and then all the other witnesses testifying 92 --

13 or submitting their evidence 92 bis as corroboration.

14 It's, I think, not possible to limit -- to get down to one witness

15 per crime base because these crime bases are not just one single event.

16 They are events that occur over -- as the Court will see in the

17 indictment, they're events that occur over a period of months, and each

18 witness has -- for example, there will be in Saborsko or Skabrnja, it is

19 alleged that there will be shelling that occurs, and then various attacks

20 on the village, and then the actual final assault on the village. Well,

21 the witnesses that we've called live will give different parts of the

22 story. It's very rare -- very unusual that one witness is capable of

23 telling the entire story about what happened. Some witnesses are there

24 for the beginning, some are there only for the middle of it.

25 So we have tried to pare down the list and be as efficient as

Page 238

1 possible. But we will -- that's something that we'll continue to look at

2 and as the trial progresses we will be very ready -- if we feel we have

3 proved a seven part of the case or provided sufficient evidence to the

4 case we will be very prepared to drop witnesses as the case goes.

5 JUDGE MOLOTO: Thank you very much. And the Chamber is mindful of

6 the facts that incidents happen all over and you're not going to call one

7 witness and just say others must corroborate. Obviously if there's need

8 to testify about other areas of the same area, and the first witness has

9 not seen that part, there is a need to call a second or a third or

10 subsequent witness to cover these areas. It's entirely with respect to

11 corroborating witnesses that the question was raised.

12 The next question relates to expert witnesses and the witnesses

13 with special expertise relating to exhibits, exhumations, and intercepted

14 conversations. I'm not quite sure whether the Chamber is correct in

15 saying there had not been any responses from the Defence with respect to

16 those two sets of witnesses. And if the Chamber is correct that there has

17 not been any response from the Defence, the question would be, can't that

18 evidence be tendered in terms of Rule 94 bis?

19 MR. WHITING: If I could just have one moment, Your Honour.

20 [Prosecution counsel confer]

21 MR. WHITING: Your Honour, it's my understanding that there was a

22 response from the Defence with respect to the experts that we submit it

23 via rule 94 bis, and it's my understanding that all of the experts at this

24 time are challenged by the Defence.

25 JUDGE MOLOTO: Thank you. Does that include even the experts

Page 239

1 relating to exhumations, exhibits, and other things?

2 MR. WHITING: It refers to -- yes, the experts relating to

3 exhumations, towards -- to our military expert, and to our expert relating

4 to the effects of these crimes.

5 JUDGE MOLOTO: Thank you very much. Just to recap, is it

6 therefore the position of the Prosecution that at this stage 63 witnesses

7 will be called for the Prosecution?

8 MR. WHITING: That's correct, Your Honour.

9 JUDGE MOLOTO: Thank you. If we may move on to the scheduling of

10 the trial now. If -- yes, Mr. Milovancevic.

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

12 Your Honour, just briefly. I would like to repeat this fact. On the 25th

13 of February, 2005, the OTP filed an expert opinion, military expert

14 opinion, in relation to Rule 94 bis, something that we challenged at the

15 time. It was in the same motion that the OTP moved to have the

16 transcripts admitted pursuant to Rule 92 bis. There are two motions that

17 we made in relation to this motion on the 25th of February when the

18 Defence received Mladen Loncar's statement or opinion pursuant to 94 bis,

19 followed by a motion that pursuant to 92 bis his transcript from a

20 previous trial should be admitted. There has not been any ruling so far

21 on these two motions.

22 On the 25th of -- on the 28th of February, 2005 there was another

23 expert opinion which we have replied to. Only the 29th of February, 2004,

24 there has been Davor Strinovic's expert opinion, plus a motion by the OTP

25 to have his transcripts admitted. We have replied to both of these

Page 240

1 motions, and we are still awaiting a decision. On the 28th of February

2 2005, we received expert Ivan Grujic's opinion pursuant to Rule 94 bis or,

3 rather, the OTP forwarded this motion to both the Chamber and the Defence

4 and another motion that pursuant to 92 bis, Rule 92 bis, the transcripts

5 of this expert should be admitted. We have replied to both these motions.

6 Finally on the 28th of February, 2005, a written filing, a motion

7 by the OTP to introduce written statements and live witnesses pursuant to

8 Rule 92 bis. Our reply was sent on the 21st of April, 2005, and the

9 Prosecution replied on the 28th of April, 2005.

10 I would also like to remind you that there is the OTP motion of

11 the 19th of July, 2005 -- or, rather, excuse me, the 17th of August, 2005.

12 The previous one was ruled upon. One is a motion to expand the list of

13 witnesses. There was a ruling. And the next is the 17th of August, 2005,

14 not ruled upon for the 65 ter exhibit list to be expanded by 719 exhibits.

15 Not ruled upon yet.

16 This is a great number of new exhibits. I'm mentioning this now

17 because at the outset today the Defence drew the Chamber's attention to

18 one difficulty we are facing. If I can have the Chamber's understanding

19 on this, please.

20 We have a problem understanding the way in which the testimony of

21 these experts will be treated and which witness statements will be viewed

22 and treated. We have 28 witnesses where we don't know what sort of

23 evidence they will give, whether it will be a partial 92 bis or whether

24 they will have a different status. We believe that a ruling on these

25 matters would determine the length of this trial, and to a large extent

Page 241

1 our work as well as the OTP's work. Thank you very much.

2 JUDGE MOLOTO: Thank you, Mr. Milovancevic. Just for the guidance

3 of the Chamber, can you very briefly tell us how many motions are

4 outstanding and what they are, without expanding on them, just so we know

5 exactly what should be attended to for -- before the trial continues.

6 MR. MILOVANCEVIC: [Interpretation] Your Honour, we're talking

7 about seven OTP motions in relation to Rule 94 bis and 92(B) or a

8 different paragraph, including the motion for leave to expand the witness

9 list. The Defence has, of course, replied to each and every one of these.

10 These, needless to say, are motions that -- I need to remind the

11 Chamber of one thing here. These were filed as early as February this

12 year to the previous Trial Chamber. These have not been dealt with. And

13 just another detail. The President of the Tribunal ruled on the

14 Prosecution's proposal for joinder. This case was forwarded to a third

15 Chamber, and this Chamber was supposed to rule on this proposal.

16 On the 4th of July, 2001, this was returned to the original

17 Chamber because of all the outstanding motions that had not been dealt

18 with, so that the joinder would not halt the proceedings and the rulings

19 that were to be made. This has not been dealt with but that just means we

20 have another fact that we need to face. Thank you.

21 JUDGE MOLOTO: Thank you, Mr. Milovancevic. I'm still not quite

22 clear how many motions there are still outstanding.

23 Mr. Whiting.

24 MR. WHITING: I'll try to address that though I don't have the

25 dates of the motions at my fingertips. But we can provide them if that's

Page 242

1 helpful.

2 There is a motion with respect to expand the 65 ter exhibit list.

3 The Chamber has ruled on the witness list, expanding the witness list but

4 there is a separate motion with respect to the exhibit list. Secondly,

5 there is the 92 bis motion which has been discussed. That is still

6 outstanding. Third, there is 94 bis motions with respect to the experts.

7 And fourth, there is a protective measures motion with respect to

8 witnesses that has also been filed and not ruled on.

9 JUDGE MOLOTO: Thank you very much, Mr. Whiting.

10 [Trial Chamber confers]

11 JUDGE MOLOTO: Thank you. The Chamber will attend to those

12 outstanding motions as soon as possible.

13 I guess we can now move on to the scheduling of the trial.

14 According to the dates that the Chamber is in possession of, it looks like

15 after the 14th of December, the next trial date for this case would be the

16 9th of January. And I think the Chamber has also received a submission

17 from the Prosecution, or some request from the Prosecution, that the

18 matter not proceed on the 9th and 11th of January. Is that correct.

19 MR. WHITING: Yes, Your Honour. I'll note that on the 11th of

20 January we're not even scheduled for a full session. I think it's an hour

21 and a half of time on the 11th of January. So for various reasons which I

22 can address if the Chamber would like me to, I think we would ask that we

23 not sit the 9th and the 11th but we start the following week when we have

24 the full week, start on the 16th. Those reasons have to do with

25 scheduling witnesses with the holiday that the Serb Orthodox holiday and

Page 243

1 also with disclosure matters because that's already less than 30 days from

2 today. So there's a problem with disclosure in terms of satisfying the

3 order with delayed disclosure.

4 So we would -- and then finally it's -- it would be very difficult

5 to fit a witness into that time, especially with the first witness that's

6 going -- I'm concerned that we will have a witness signature here for a

7 week if we're not able to finish the witness in that short time that's

8 been provided to us.

9 JUDGE MOLOTO: By holiday are you talking about holiday on the

10 10th?

11 MR. WHITING: No, Your Honour. My understanding is that the Serb

12 Orthodox Christmas is on January 7th, and Defence counsel may know better

13 than me about this but that's my understanding. That's an important

14 holiday which makes it difficult to bring a witness before the 9th in

15 order to be able to testify on the Monday. I foresee -- this is always a

16 scheduling difficulty for witnesses and I foresee it being a problem here.

17 JUDGE MOLOTO: Mr. Milovancevic, do you have any comment to make

18 on the Prosecution's request that the Court -- the Chamber doesn't sit on

19 the 9th and the 11th? Very briefly.

20 MR. MILOVANCEVIC: [Interpretation] I have no objections to that

21 request. We agree, Your Honour. I do have a different issue that I wish

22 to raise, though, if I may, in connection with the very beginning of the

23 trial.

24 JUDGE MOLOTO: You may proceed, Mr. Milovancevic.

25 MR. MILOVANCEVIC: [Interpretation] Thank you, Your Honour, for the

Page 244

1 time allowed me. I'll be to be very brief.

2 On the 22nd of November, a Status Conference, a 65 ter Conference

3 was scheduled, a meeting that was graced by your presence, Your Honour.

4 On this occasion, the Defence team pointed out a number of difficulties

5 that we were facing. I will not be going into those now.

6 We received a decision of the Trial Chamber in relation to our

7 motion dated the 18th of March, 2005. Therefore, on the 18th of March,

8 2005, which is nearly nine months ago, we filed an urgent motion with the

9 previous Trial Chamber in relation to our status. I will now be speaking

10 about what occurred on the 22nd of November.

11 On that day, the senior legal officer for the previous Chamber,

12 the case has in the meantime been handed over to you following an

13 extensive discuss, he said did he not understand the problems faced by the

14 Defence. Mr. Harhoff said that Mr. Martic was being charged with a very

15 short period of time and a mere handful of locations as crime base, and

16 did he not understand what sort of difficulty the Defence team were

17 facing, he said.

18 JUDGE MOLOTO: May I interrupt you Mr. Milovancevic, because for

19 the simple reason that item you are talking about we will talk about.

20 It's provided for on the agenda, and can we just dispose of the scheduling

21 of the trial as it stands there and we'll come back to the point you are

22 raising, if you don't mind.

23 MR. MILOVANCEVIC: [Interpretation] I fully agree, Your Honours.

24 Thank you.

25 JUDGE MOLOTO: Thank you very much. Now, you have indicated that

Page 245

1 you have no objection to the Court not sitting on the 9th and the 11th. I

2 suppose I'm right there. The next date, then, is a whole week starting

3 from the 16th of January up to the 20th. Is that okay? Can we sit on

4 that day? Mr. Whiting?

5 MR. WHITING: Yes, Your Honour.

6 JUDGE MOLOTO: Mr. Milovancevic?

7 MR. MILOVANCEVIC: [Interpretation] Thank you, Your Honour. Excuse

8 me if I'm using strong words, but we were shocked to learn or I was

9 shocked to learn that the senior legal officer did not understand the

10 complex nature of the task of the Defence team on this case.

11 JUDGE MOLOTO: May I again ask you, Mr. Milovancevic, we will talk

12 about that problem. Can we for now try to focus on that little calendar

13 that stands on your agenda if you do have it before you. If you don't

14 have it I can rattle the dates and so -- we will talk about the problems

15 that you are experiencing, but can we just deal with the scheduling of the

16 case at this point.

17 MR. MILOVANCEVIC: [Interpretation] My apologies, Your Honour. I

18 really did not understand you. You talked about the 16th of January

19 through the 20th of January. That is beyond dispute as far as the Defence

20 team is concerned. We looked at the scheduling, and I have nothing else

21 to add on that particular issue. Thank you.

22 JUDGE MOLOTO: Thank you very much. Can I then take it that that

23 scheduling that goes up to the 3rd of March is agreed on? In other words,

24 after the 20th of January there's going to be 26th and the 7th, 30th and

25 31st of January, and it's going to be 6, 7, 16, 17, 20, 21 of February,

Page 246

1 and 2nd and 3rd of March. Mr. Whiting.

2 MR. WHITING: That's fine with the Prosecution, Your Honour.

3 Obviously this usual schedule of two days here, four days, this could

4 present difficulties at time with witnesses and scheduling but we'll deal

5 with those as we come and we will -- we will do our best to fill all the

6 time that has been scheduled.

7 JUDGE MOLOTO: Thank you very much, Mr. Whiting.

8 Does the Defence also confirm that, Mr. Milovancevic?

9 MR. MILOVANCEVIC: [Interpretation] Your Honours, I'm afraid I

10 might be misunderstood. I bear in mind what you have just told us, but we

11 have something else on the agenda, and if I may be allowed to question

12 this. With no intention to enter into a polemic with the Trial Chamber, I

13 do not have this possibility nor would I myself be prone to do anything

14 like that. But there is another difficult that the Defence team is face

15 so to say anything else on this matter would make no sense and that's why

16 I tried to say something about it a while ago but I failed to fully

17 understand what Your Honour was saying.

18 As for the beginning of the trial, the scheduling and the

19 timetable is something that must be complied with once this has been ruled

20 upon by the Trial Chamber. There's an essential issue that the Defence

21 wishes to raise before such time, and we believe that this might affect

22 the Chamber's position on when to begin and how to begin.

23 If I may say something about that, I think this would greatly

24 affect the scheduling and your ideas of the scheduling.

25 JUDGE MOLOTO: Thank you, Mr. Milovancevic. Can you proceed,

Page 247

1 then, state the problem.

2 MR. MILOVANCEVIC: [Interpretation] Thank you, Your Honours. I'll

3 be very brief. We received your decision on our motion of the 18th of

4 March saying, among other things, that during this break from the 13th and

5 the 14th of December until the trial continues in January, the Defence

6 will have an opportunity to catch up with the Trial Chamber. This is a

7 real problem for our Defence team, and that is why we request the

8 Chamber's attention in order to deal with this issue.

9 Were the Defence team to accept this, that would mean that we're

10 bringing upon ourselves the obligation to have little time, only as much

11 as a fortnight with Christmas included, to master this material that the

12 OTP have been working on for the past 19 months throughout which time the

13 Defence have had no investigators of our own or any means to conduct any

14 research. This is simply put an impossible task for the Defence. We

15 cannot catch up because the time is too short.

16 A while ago I drew the Chamber attention to a position expressed

17 by a previous Chamber. I'm talking about the essence of the difficulty

18 the Defence is facing. It's an assessment of the previous Trial Chamber.

19 No reasonable person could say you should assume their responsibility but

20 the case has been handed over to you and you are the Trial Chamber that

21 must create fair conditions for an equitable trial.

22 At this point in time, since March 2004, the Defence has had no

23 opportunity to hire investigators. We were denied this opportunity. We

24 got the pre-trial brief. We got the extension of the witness list. 60 --

25 24.000 pages of documents and 68 CDs, in short. We are expected to catch

Page 248

1 up with all this and only given very little time to work with.

2 My understanding is the first Chamber that dealt with the case did

3 not review the magnitude of the entire case. My colleague,

4 Ms. Uertz-Retzlaff, on the 20th of May, 2004, stated at a Status

5 Conference that the Martic case would elicit a large number of complex

6 legal issues, very many issues to do with the joint criminal enterprise

7 would be correlating with many other cases, the Milosevic case, the

8 Plavsic case, the Babic case, the Mladic case, the Seselj case, the

9 Stanisic case, the Simatovic case, and a number of other cases would be

10 involved, and all of this is under paragraph 6 of the indictment. Their

11 names are listed there.

12 We have the amended indictment. We started this conference today

13 by a reference to this amended indictment. After the original indictment

14 was raised in 1995, the accused Martic is being charged with new charges

15 altogether. Nineteen counts in relation to five years of which he was the

16 incumbent of the following posts: Defence Minister, president of the

17 republic, and so on and so forth. He was active in two different

18 countries. This was between 1990 and 1995. One of the previously

19 sovereign states disintegrated - that was Yugoslavia - and new countries

20 were created. A conflict occurred, the nature of which we are bound to

21 determine.

22 Our requests are refused. Our requests to be able to get on with

23 work are refused. The pre-trial stage takes 43 months, whereas the

24 pre-trial stage should normally take between 6 and eight months. This one

25 has been going on for 43 months. So over the last couple of months the

Page 249

1 Defence has not been able to keep up with the OTP. We would like to

2 indicate to you the dramatic nature of our position.

3 We must think out loud about this. Mr. Harhoff told us that this

4 was a simple case with only several locations involved over a brief period

5 of time, whereas in actual fact we are talking about the duration of the

6 entire conflict, five years, the entire duration of the joint criminal

7 enterprise of which Mr. Martic is a key leader.

8 We believe that the problem faced by the Defence lay in the lack

9 of understanding by the previous Trial Chamber. This is also indicated by

10 the number of outstanding motions. If those had been dealt with probably

11 we would be facing a very different picture now.

12 Forgive me for saying this, but the Defence are facing a very

13 dramatic position now. Contrary to Article 21 of the Statute, contrary to

14 Article 7(3)(B) of the human rights convention, contrary to judgements

15 that have been passed, Mawzit vs. Russia, January 2005, contrary to a

16 judgement of this Tribunal in the Krajisnik case specifying that no

17 restrictions can be imposed on Defence teams, that Defence teams must be

18 allowed to prepare their cases for trial, we now have a situation where

19 we're facing a period of 15 weeks. We have gone on without means, without

20 funds for so long to catch up. We're trying to keep up with the OTP but

21 the first indictment was filed in 1995, and the last motion to expand the

22 exhibit list was the 18th of August, 2005 containing 6.600 pages of

23 potentially exculpatory material but this material must be reviewed all

24 these documents must be reviewed analysed.

25 I will just say one more thing, Your Honour. We as a Defence team

Page 250

1 must now embark upon this trial not having been allowed to enlist the help

2 of experts to track down our own witnesses, to collect evidence, to devise

3 a consistent Defence plan. On the 16th of January the trial will begin,

4 and if everything happens the way it now looks we shall just not be able

5 to cross-examine witnesses.

6 The OTP have spent ten years preparing the case. Are we supposed

7 to do the same thing over the next 15 days? We have given it our best

8 shop Your Honours but this is a physical impossibilities. We are trying

9 to keep this case afloat. We have been trying to keep up. We have been

10 filing all the replies. Maybe I'm being a bit too extensive for which I

11 apologise to the Trial Chamber. I just wish to show that facing a

12 difficult situation, an uphill struggle, being asked to do the impossible,

13 we have done our best. We replied to motions by the OTP just to keep

14 damage from being inflicted to our client in a situation where we were

15 hardly able to do anything else.

16 Therefore, we are dealing here with the best interest of justice.

17 JUDGE MOLOTO: [Previous translation continues] ...

18 MR. MILOVANCEVIC: [Interpretation] And all we want to have is a

19 fair trial, equality of arms. We would like a more reasonable deadline to

20 master these documents. We would like that to be granted to us by the

21 Trial Chamber.

22 I have pointed this out on many occasions, but we met with a lack

23 of understanding. We were wondering what's going on? And it is now that

24 we realise that the previous Trial Chamber have left so many motions

25 unresolved, and what they lack is a clear picture of the complex nature of

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1 the case before us.

2 The joint criminal enterprise comprises the entire indictment. It

3 is directly addressed by paragraphs 2 through 9 and in the pre-trial brief

4 from 37 to through 54 of the pre-trial brief. Factual description and the

5 substance of the joint criminal enterprise that the OTP are referencing.

6 So much for me Your Honour.

7 JUDGE MOLOTO: Thank you. The Chamber will take a break. We'll

8 come back at 8.00.

9 --- Recess taken at 7.36 p.m.

10 --- On resuming at 8.02 p.m.

11 JUDGE MOLOTO: I just wanted to say, Mr. Milovancevic, the points

12 you made just before we went for the break were the points I kept on

13 saying we will deal with in the next item. I want to believe that we have

14 exhausted what you have to say on that item.

15 I just want to say the following: First of all, this Chamber gave

16 a decision on there point denying your motion for a postponement. I don't

17 think it is appropriate that the issues that were dealt with in that

18 decision should be raised again in this hearing today.

19 Secondly, in your submissions this afternoon on this point, you

20 made a reference to the fact that the decision denying the postponement

21 had indicated that the Defence would get an opportunity to do their

22 preparations because the trial would not be scheduled that early.

23 Now, that decision led on the relevant point that "Considering

24 that the presentation of evidence through witnesses will not start until

25 at the earliest the second week of January 2006 at a date to be determined

Page 252

1 at the Pre-Trial Conference which would allow the accused adequate time to

2 prepare his defence."

3 Now, the scheduling as discussed today, if this case had started

4 on the 9th of January, would have been at least at the beginning of the

5 week. The schedule is now scheduled for 16th of January, which is at the

6 beginning of the third week. So I do not think that the scheduling is

7 inconsistent with the decision given, and the Chamber is of the view,

8 therefore, that the point you've made on that that you were not being

9 given the opportunity you were promised in the decision not correct.

10 There is no the papers that were filed with the Chamber a letter,

11 if I can find it, which I seem to remember that it's dated the 8th of

12 December, 2005, in which OLAD advises the Defence about the developments

13 in the very issue that you raised. And in that letter, the Defence is

14 being asked to file its submissions on the complexity of the matter in the

15 trial stage, which means that OLAD is prepared to review the -- or at

16 least to consider those submissions from the Defence as relates to the

17 trial stage of the case. And if the Defence has not made those

18 submissions yet, the Defence is invited to make those submissions. If the

19 Defence has made those submissions and OLAD has not replied, I think the

20 Defence must await the reply of OLAD.

21 Fourthly, the Chamber is of the view that given the scheduling as

22 it stands, with a number of openings in between the dates of hearing, the

23 Defence should be in a position to prepare its case as the trial proceeds.

24 And finally, just like I would imagine the Defence would think,

25 the Chamber is of the view that justice delayed is justice denied. Now,

Page 253

1 the accused has been in detention for a very long period. The Chamber is

2 concerned to bring this matter to finality as speedily as possible, and it

3 doesn't appear as if postponements that can be avoided should be granted

4 easily.

5 The Chamber is therefore of the view that item 10, which was the

6 last item on the agenda -- beg your pardon, item 12, should be adequately

7 dealt with between the Defence and OLAD in terms of that correspondence of

8 the 8th of December, 2005.

9 Is there any comment, Mr. Whiting?

10 MR. WHITING: No, Your Honour.

11 JUDGE MOLOTO: Mr. Milovancevic?

12 MR. MILOVANCEVIC: [Interpretation] I understood, Your Honour. I

13 just wish to mention one issue. Initially you asked Mr. Martic about his

14 health. As I visited him today at the Detention Unit, we informed the

15 Chamber on the 22nd of November, the Chamber and the Registry, that

16 Mr. Martic has a problem with his right shoulder and right arm. The pain

17 is so bad that it wakes him up at night.

18 So far the doctors have not responded to his complaints.

19 Therefore, I would like to ask the Trial Chamber, if it is authorised to

20 do so, to instruct the Registry that the accused be given medical

21 assistance. Thank you.

22 JUDGE MOLOTO: Thank you, Mr. Milovancevic.

23 [Trial Chamber and legal officer confer]

24 JUDGE MOLOTO: I'm advised, Mr. Milovancevic, that this is a

25 matter which requires the Defence to -- let me backtrack. This is a

Page 254

1 matter to be addressed to the head of the Detention Unit, and the head of

2 the Detention Unit would then take it upon him. I'm not quite sure how it

3 has been dealt with so far. It may very well be it has been dealt with

4 orally, and if that be the case, may I suggest that maybe you might be

5 prepared to help Mr. Martic to make a written presentation to the head of

6 the unit tabulating his problems and asking assistance from him. In the

7 meantime the Chamber will also be investigating what other options may be

8 available to Mr. Martic.

9 MR. MILOVANCEVIC: [Interpretation] Just one sentence, Your Honour,

10 with your permission, in order to clarify. The Defence would apply to the

11 Detention Unit had -- had it not been for the fact that during our

12 previous Pre-Trial Conference Mr. Harhoff instructed us to apply to the

13 Registry. So we were awaiting further instructions. Thank you.

14 JUDGE NOSWORTHY: Counsel, have you already addressed a request to

15 the Registry and not succeeded or not received a response?

16 MR. MILOVANCEVIC: [Interpretation] Your Honours, I raised this

17 issue at the 65 ter meeting held on the 22nd of November. It was not

18 attended by the accused Mr. Martic. I raised this issue saying that he

19 had had for four months shoulder pains, that his arm is -- has atrophied,

20 and --

21 JUDGE MOLOTO: Mr. Milovancevic, sorry, just a second. I think

22 the question from the Judge was, since the 65 ter Conference have you

23 applied to the Registry and have you been successful or not?

24 MR. MILOVANCEVIC: [Interpretation] I apologise. I have not

25 understood you. Not since then, no. I have only just arrived to The

Page 255

1 Hague today, and I only had contact with my client today. This is why I

2 raised this.

3 JUDGE NOSWORTHY: [Previous translation continues] ... interim?

4 MR. MILOVANCEVIC: [Interpretation] Because, Your Honours,

5 Mr. Martic is the kind of a person who dislikes complaining. He simply

6 suffers quietly. However, once I go and visit him in the Detention Unit,

7 when I see how he makes his movements when pouring coffee or something

8 else, when I see how painful these movements are, it is only then that I'm

9 able to recognise the extent of the pain. Otherwise, he's the kind of a

10 person that doesn't complain. And upon seeing this, I felt this need to

11 raise this issue. This is not something that he would normally mention

12 when talking to me on the phone. Thank you.

13 JUDGE NOSWORTHY: So you will now formally address your request to

14 the Registry?

15 MR. MILOVANCEVIC: [Interpretation] I accept your suggestion,

16 Your Honours. That's precisely what we're going to do.

17 JUDGE MOLOTO: Thank you very much. I think that brings us to the

18 end of our Pre-Trial Conference. The matter --

19 MR. WHITING: Your Honour, I'm sorry. I just want to make clear

20 what I think is probably already clear, but -- that we will start with

21 witnesses on the 16th of January, then? Is that the position?

22 JUDGE MOLOTO: That is the position. Thanks, Mr. Whiting. And,

23 Mr. Whiting, we also hope that the Prosecution will, as soon as possible,

24 give us the order of the witnesses, and also to the Defence.

25 MR. WHITING: Yes, of course.

Page 256

1 JUDGE MOLOTO: Thank you very much.

2 Unless anybody has anything to say, I think that brings us to the

3 end of the Pre-Trial Conference. The Court will stand adjourned until the

4 16th -- I beg your pardon, until tomorrow.

5 --- Whereupon the Pre-Trial Conference adjourned

6 at 8.17 p.m.