Tribunal Criminal Tribunal for the Former Yugoslavia

Page 682

1 Wednesday, 12 May 2004

2 [Open Session]

3 [The accused entered court]

4 --- Upon commencing at 2.35 p.m.

5 JUDGE ROBINSON: Will the Registrar call the case, please.

6 THE REGISTRAR: Good afternoon, Your Honour. Case Number

7 IT-99-37-PT, the Prosecutor versus Milan Milutinovic, Nikola Sainovic, and

8 Dragoljub Ojdanic.

9 JUDGE ROBINSON: Appearances.

10 INTERPRETER: Microphone for Mr. Nice, please. Microphone.

11 MR. NICE: Sorry. I appear for the Prosecution with Cristina

12 Romano, Patricia Fikirini, and Susan Grogan as the case manager.


14 MR. O'SULLIVAN: Good afternoon, Your Honour. Eugene O'Sullivan

15 appearing for Mr. Milutinovic.


17 MR. FILA: [Interpretation] Good afternoon, Your Honour. Toma Fila

18 and Mr. Vladimir Petrovic on behalf of Nikola Sainovic.

19 JUDGE ROBINSON: Thank you.

20 MR. VISNJIC: [Interpretation] Good afternoon, Your Honour.

21 Tomislav Visnjic and Peter Robinson for General Ojdanic.

22 JUDGE ROBINSON: Thank you. This is a Status Conference. We have

23 a number of matters to get through. I'll begin with the pending motion,

24 the application for binding orders filed by the Ojdanic Defence team. We

25 will be scheduling a hearing in this matter as soon as the Trial Chamber

Page 683

1 is fully constituted. That will be in another three to four weeks.

2 There is the Ojdanic motion challenging jurisdiction. I

3 understand that the Appeals Chamber will issue a decision in this matter

4 very soon.

5 I turn to disclosure of witness statements. Rule 66(A)(i) statements

6 disclosure complete for all three accused, and the same for 66(A)(ii)

7 statements, with the exception of one witness in respect of whom

8 protective measures have been ordered.

9 All expert reports have been disclosed in both B/C/S and in

10 English.

11 I turn now to Rule 68 disclosure, and we should go into private

12 session since we will be dealing with a Rule 70 matter.

13 [Private session]

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 684

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 [Open session]

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

14 JUDGE ROBINSON: Yes. I was saying, Mr. Nice, that I understand

15 that there is a wider problem of disclosure relating to the implementation

16 of what is called the e-disclosure system. And it is now being said that

17 this is working to the prejudice of the Defence. It is said that little,

18 if any, material relating to Kosovo is available on this system. What is

19 the position?

20 MR. NICE: First of all, there's a one-side paper distributed to

21 Defence counsel and available for Your Honour that sets out the present

22 position. Perhaps --

23 JUDGE ROBINSON: That was distributed just now, was it?

24 MR. NICE: I'm not sure when it was distributed to counsel, but

25 just now.

Page 685

1 JUDGE ROBINSON: It's dated the 10th of May.

2 MR. NICE: Yes. It sets out what the system is. It sets out the

3 means of accessing the system which can be done via a password, and I have

4 no doubt that if at any stage the Bench or any of its members would like

5 to have it demonstrated to see how easy it is of access, that could be

6 arranged. But of course, you need a password, so you can't just enter the

7 site that's given here.

8 Under the heading "general collections," we see a reference to the

9 4.700.500 pages of material all of which is being assessed for inclusion

10 in the system. Of that some 35 per cent or 1.6 million pages are already

11 on the system with a further nearly 0.4 million pages in final stages of

12 preparation, and they should be on the system within one month.

13 There are then 900.000 pages being inspected visually, and it's

14 forecast that they will be on the system by the summer recess. So by that

15 stage, some 55 per cent of the collections will be available

16 electronically to the Defence. The remaining 1.8 approximately million

17 pages form part of the restricted collections, principally, I suppose,

18 witness materials or witness-related materials and Rule 70 and other

19 confidential material. As you see from the note, a review of some 640.000

20 pages of Rule 70 material is underway to check to what extent some of that

21 material may have had its Rule 70 status lifted. And once that exercise

22 is completed, any material free of Rule 70 restrictions can then be added

23 to the electronic system. And a final review of witness-related materials

24 is planned to see if there is material that can be placed on the

25 electronic system perhaps in a redacted form.

Page 686

1 So that's the general state of the electronic disclosure system.

2 And it's obviously an enormous project, and a very considerable advance to

3 the benefit of all parties, but particularly to the Defence, on what was

4 done before under any manual system.

5 Turning then to case-specific disclosures, the system has the

6 capability of delivering documents on a trial-specific basis, and indices

7 will be available to trial teams and are then intended to replace CD sets

8 that have been provided. And overall, it's felt that the advantages are

9 improved, search efficiency for the Defence and simpler tracking of what

10 has been provided without there being a need for substantial paper-storage

11 requirements for the Defence.

12 It also obviously accelerates the speed in which material can be

13 provided.

14 So far as this case is concerned, as the Court may recall, some 29

15 CD-ROMs of material were disclosed in October of last year. They will be

16 added to the electronic system by June of this year, the first week it's

17 hoped, so that they will then be searchable by the same search tools as

18 operate on the system generally. That's a summary of where we are.

19 The OTP staff member in charge or, for these purposes, in charge

20 of this system is available within the building today. And I think

21 following the proceedings, should you require his attendance here to

22 assist further, but I hope that you'll be satisfied with what I have been

23 able to explain to you here.

24 JUDGE ROBINSON: [No microphone].

25 THE INTERPRETER: Microphone, Your Honour, please.

Page 687

1 MR. NICE: Yes, certainly. One way or another. At the moment

2 they've got their 29 CD-ROMs. Those CD-ROMs will, or the content of those

3 CD-ROMs will be loaded on to the general system by the first week of June

4 and comprise then part of the 35-odd per cent of our material that's

5 searchable on that system. And as we see, there's more material going to

6 be provided to the system by the summer recess.

7 JUDGE ROBINSON: So this state of accessibility has only been

8 reached just now?

9 MR. NICE: Comparatively recently.

10 JUDGE ROBINSON: Recently. All right, thank you.

11 Mr. O'Sullivan, do you have anything to say on this.

12 MR. NICE:

13 MR. O'SULLIVAN: Yes, Your Honour. I'm grateful to Mr. Nice for

14 providing us with this document which does shed some light on this

15 question for us.

16 We would be grateful to know when the case-specific disclosures to

17 the Kosovo collection will be in this system. That's the -- as I

18 understand this document, there are three divisions that Mr. Nice has

19 referred to. 55 per cent of this general collection will be on line by

20 the summer recess. Then there's the 45 per cent which apparently is going

21 to remain restricted, which is fine. But it's the case specific to the

22 Kosovo collection that we are most interested in --

23 JUDGE ROBINSON: Obviously, yes.

24 MR. O'SULLIVAN: -- which appears not -- there are no dates

25 surrounding the case-specific Kosovo collection. That's the one we're

Page 688

1 most interested in.

2 JUDGE ROBINSON: Mr. Nice, Mr. O'Sullivan is naturally concerned

3 about the Kosovo case.

4 MR. NICE: Our understanding is that --

5 THE INTERPRETER: Microphone, please, Mr. Nice.

6 MR. NICE: My apologies. Our understanding is that this material

7 which they have already had in the 29 CD-ROMs will be available on the

8 system certainly by the summer recess, and the CD-ROMs themselves will be

9 loaded by June of this year, by the first week of June of this year. And

10 of course, the endpoint of the exercise is when all the material that

11 isn't sensitive so that it can't be loaded on to a publicly available

12 system has been provided. And I think the expectation broadly is that

13 would all be accomplished by the summer recess, but I'll be corrected if

14 I'm wrong on that. So in short, they have got the material in CD-ROM.

15 That material is going to be on the system by the first week of June. And

16 all the material, subject to that which has to be withheld, should be

17 available by the summer recess.

18 JUDGE ROBINSON: Thank you.

19 MR. NICE: By the way, sorry -- I haven't checked this with

20 Mr. O'Sullivan, but we understand from the records that we have got that

21 Mr. O'Sullivan has yet to open his account. I'm not sure if that's right,

22 and to seek to gain access to the system. It may be that we're wrong on

23 that. It appears that his password hasn't yet been used. He may benefit

24 from trying it out. But it may be he hasn't done -- maybe we are wrong on

25 that; I don't know.

Page 689

1 MR. O'SULLIVAN: I haven't, but my co-counsel has.

2 JUDGE ROBINSON: I see. Perhaps he's as electronically challenged

3 as I am.

4 MR. NICE: Your Honour, we hesitate to say anything of the sort.

5 JUDGE ROBINSON: Rule 66(B) disclosure. The Milutinovic Defence

6 has requested access under Rule 66(B) to various confidential materials

7 from the Milosevic trial. There's no reciprocal disclosure any more. And

8 are you in a position to say whether -- have you received that request and

9 what is the response to it?

10 MR. NICE: We haven't received any formal request yet. So we

11 await it in writing, and we will deal with it when it comes.

12 JUDGE ROBINSON: Very well. Yes.

13 Disclosure from the Milosevic trial, arrangements are in place

14 with the Registry for the Defence teams to obtain access to public

15 material. And I understand that this arrangement appears to be working.

16 Agreed and adjudicated facts, discussions have commenced, although

17 slowly, on 17 items proposed by the Sainovic Defence. And the Defence

18 provided the Prosecution yesterday with a revised list based on those

19 discussions. Any comments on that?

20 MR. NICE: I don't know if Your Honour's had an opportunity to

21 look at the 14 points --

22 JUDGE ROBINSON: No, I haven't.

23 MR. NICE: Then I think perhaps Your Honour should at some stage.

24 We suspect that they are points that may not be contentious and may be

25 admitted, such matters as Mr. Sainovic's date of birth and his history of

Page 690

1 positions held and so on, much of which is in the public domain. And

2 indeed, we find at item 10 a proposition to the effect that the Autonomous

3 Region of Kosovo and the Metohija is located at the south part of the

4 Republic of Serbia which we suspect is a proposition we may find it in our

5 ability to admit. What we find more concerning is that there is nothing

6 that going to be truly time-saving on the indictment that's contained here

7 and that this document effectively leaves us exactly where we are without

8 any effective admissions.

9 We've gone through various processes in this trial, and indeed I

10 think in others.

11 JUDGE ROBINSON: Mr. Nice, the question is whether it represents a

12 bona fide and a best-effort on the part of the Sainovic Defence. Let me

13 ask Mr. Fila. Or is it --

14 MR. PETROVIC: [Interpretation] Your Honour, in keeping with the

15 instructions received from you and pursuant to the manner and methodology

16 in a number of cases before this International Tribunal, on two occasions

17 we did compile, first of all 17, and the second time 14 facts as our

18 proposals for hearing the Prosecution's stand on. And so that in that

19 domain, what would be the subject of proof in a limited way that this

20 should be brought down to a narrow spectrum of questions and problems.

21 Our first attempt was made in January this year, but it did not come upon

22 the understanding of the Prosecution. We tried in a serious manner to

23 open up and broach topics that we consider to be important for the Defence

24 case of Mr. Nikola Sainovic --

25 JUDGE ROBINSON: Mr. Petrovic, I'm sorry to interrupt you. The 17

Page 691

1 facts represent the totality of what you're able to offer?

2 MR. PETROVIC: [Interpretation] Your Honour, that is precisely what

3 I wish to clear up. In the first letter, we offered 17 facts. In the

4 second letter, which was sent to our learned colleagues the day before

5 yesterday, we have an additional 14 facts listed. And in total, in the

6 two letters, we have put forward 31 facts.

7 Now, if there is understanding on their part, then we shall

8 continue the process. This is a first step, an initial attempt, and if it

9 comes upon understanding, on the basis of what has been done so far, we

10 are, of course, ready to take the next step in conformity with the

11 instructions given by you, Your Honour.

12 JUDGE ROBINSON: Yes, well I expect both parties to continue

13 working. Of course, you understand, Mr. Petrovic, if you list as a fact

14 or if you offer as a fact a matter such as the date of birth of your

15 client, you know, some questions may be raised about your bona fides. I

16 expect the exercise to be conducted in good faith, and I expect a best

17 effort from both parties in this exercise.

18 MR. PETROVIC: [Interpretation] Your Honour, it is with regret that

19 I have to notice that with a certain amount of sarcasm which this example

20 was quoted by my colleague, that is just part of one fact which is

21 incorporated in the indictment, and therefore it was for this reason that

22 it was found in our text. Of course, the text itself does contain far

23 more serious topics and proposals compared to the date of birth of

24 Mr. Sainovic. Of course, that is not challenged or contested. But as

25 that is in the indictment as well, then that is the first part or part 1

Page 692

1 of fact 1. Of course, that is not the substance and crux of the matter.

2 That lies, the crux lies in other proposals. And as I emphasise, this is

3 the beginning of a process, and there are things that are relevant there

4 for Your Honour when it comes to decision making on the charges contained

5 in the indictment. And I should also like to stress that the substance

6 and essence of what the proposal, the second proposal made up of 14 facts

7 is, is that it is along the lines of everything that has been done thus

8 far with the other two accused; that is to say, Mr. Milutinovic, and

9 Mr. Ojdanic. Thank you.

10 JUDGE ROBINSON: Thank you.

11 We still are working with an estimate of 100 to 120 witnesses.

12 And I don't know whether the original estimate of three to four months

13 would still stand. I very much doubt that.

14 There's the matter of the health of Mr. Milutinovic.

15 Private session.

16 [Private session]

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 [Open session]

24 JUDGE ROBINSON: Are we back in open session? Yes.

25 I was asking whether there was any other matter that counsel would

Page 693

1 wish to raise.

2 MR. ROBINSON: Excuse me, Your Honour.

3 JUDGE ROBINSON: Yes, Mr. Robinson.

4 MR. ROBINSON: Yes, Your Honour, yesterday at our 65 ter

5 conference, I sent you a message. And I could repeat that message if you

6 haven't received it, or if you have received it and don't wish to hear it

7 again, that would be fine, too. But I would like to at least confirm that

8 items I mentioned yesterday with respect to the resources of the Ojdanic

9 team has come to your attention and hopefully something can be done about

10 it.

11 JUDGE ROBINSON: I would like you to make the points so that they

12 can be on record so that I can take the necessary steps that are feasible

13 to have them addressed.

14 MR. ROBINSON: Thank you very much, Your Honour. And I won't take

15 too much time with this, but it's of extreme importance to General Ojdanic

16 and his Defence team. I understand that the Pre-Trial Judge has a duty to

17 prepare the case for trial so that on the first day of trial we are

18 prepared to proceed. And unfortunately, on the first day of trial in this

19 case, as things now stand, we won't be prepared to proceed. As you know,

20 the Ojdanic team has received no compensation for its work since April of

21 2003. And by the time this trial is to commence, it may be one or two

22 years without any compensation for the Defence of General Ojdanic.

23 As a result of that, we will not be in a position to make any

24 admissions, stipulations, any agreements to experts because we will not

25 have had an opportunity to conduct any investigation into those matters.

Page 694

1 We'll be completely unprepared to make an opening statement because there

2 will be in excess of 300.000 pages of disclosure which we will not have

3 read and have conducted no meaningful investigation. We will be in no

4 position to cross-examine the first witness or any other witness because

5 we haven't read the material, haven't investigated it, and haven't

6 prepared. At the beginning of the trial when our payments would then

7 commence, because it's a new phase, we would probably need at least six

8 months of full-time preparation by myself and Mr. Visnjic before we could

9 be in a position to begin the trial.

10 If the Trial Chamber declines to give us time to prepare, I think

11 we would be in no -- have no alternative than to move to withdraw from

12 representing General Ojdanic, and I know that my own bar rules do not

13 allow me to render ineffective assistance to a client, and I would be

14 completely unable to render effective assistance to General Ojdanic with

15 the resources that have been allotted to us by the Registry. Even if we

16 were not allowed to withdraw, I can tell you that General Ojdanic would

17 fire us, and he would be prepared to represent himself if it was necessary

18 without adequate resources for his Defence.

19 What is not an option, and I would like to make this very clear,

20 is that somehow the lawyers would go along and be there as some kind of

21 puppets for a show that ask a few questions, make a few objections, and

22 not really be effective advocates for our client. That's completely

23 unacceptable to us, and we would not allow ourselves to be used in that

24 way.

25 So I'm saying this now to you on the 12th of May of 2004 in the

Page 695

1 hope that that situation on the first day of trial and thereafter can be

2 avoided. The Appeals Chamber has said that the issue of equality of arms

3 doesn't arise until the trial, and so we have no remedy against the

4 Registrar's decision before then. We have tried, as you know, we have

5 been up to the Appeals Chamber on this issue. We have sent more than 12

6 letters to the Registrar. And it's our hope that you, as the

7 Pre-Trial Judge, would have the foresight to manage this problem before it

8 comes to trial. It's easy to say that it's a matter for the Registry, but

9 the Chambers and the Registry have to work together to ensure that trials

10 occur when they're ready, and when they do occur, they're fair. And I can

11 tell you that General Ojdanic will not receive a fair trial unless

12 somebody becomes proactive and manages this problem. I thank you for your

13 patience. I'm happy to answer any questions you may have. But I want to

14 make it very clear to you what is the situation. Thank you.

15 JUDGE ROBINSON: On what basis are you now working?

16 MR. ROBINSON: General Ojdanic's lawyers are completely pro bono

17 at this time. We have tried to push the train that is out of gas, but

18 manually and do a few things to keep General Ojdanic supplied with

19 materials and do the minimum amount of things that need to be done. But

20 basically, we're operating on a completely volunteer basis and have been

21 since April 2003.

22 JUDGE ROBINSON: Mr. Robinson, as you know, we have to operate

23 within the framework of the Rules governing the Tribunal. The

24 Appeals Chamber has ruled on the issue which you raised concerning costs.

25 That decision obviously has to be respected.

Page 696

1 I listened carefully to what you said, and I read the 65 ter

2 statement yesterday. And you have to be careful how you couch your

3 representations. And I would like to think that the representations do

4 not constitute a threat to the Chamber, because the Chamber, of course,

5 and the Tribunal does not operate under threats from counsel or from any

6 body. So I take it that the remarks are made entirely in good faith and

7 on the basis of your understanding of the duties that you have to your

8 client.

9 I see it as a public issue and a public-interest issue. And for

10 that reason, I am going to raise it with the President and the Bureau of

11 the Tribunal.

12 MR. ROBINSON: Thank you very much, Judge Robinson. I assure it's

13 not a threat, but I think a very clear picture of the reality if nothing

14 is done. Thank you.

15 JUDGE ROBINSON: Thank you.

16 The only other business, then, would be, before I call on the

17 three accused persons, to say that the next Status Conference will be

18 Wednesday, the 8th of September.

19 MR. NICE: Your Honour.


21 MR. NICE: Arising from the point that Mr. Robinson has been

22 making, the following: Although, it's of course essentially a matter

23 between Defence counsel, the Registry, and Your Honour, the Prosecution

24 and its witnesses have an interest, a very direct interest, in not finding

25 themselves here at court on the first day of any trial with witnesses

Page 697

1 prepared only to face an abandonment or postponement of the case that has

2 been forecast and might have been avoided. So we have to a significant

3 interest a real interest. Thinking on that and seeking to assist the

4 Chamber, I raise as an issue for consideration this: To what extent is it

5 right for counsel to take the case to the position of the first day of the

6 trial if they know that on that day they will either withdraw or be

7 sacked? If they do know that's the position, subject to what they follow

8 from Your Honour's steps which you may take with the president, if they

9 know that is their position, may their duty not be to act earlier so that

10 the trial won't be compromised at the last day. That's all I offer, and I

11 offer it bearing in mind that the Prosecution has a real and substantial

12 interest in not having the trial aborted at the very last minute.

13 JUDGE ROBINSON: I acknowledge the interest of the Prosecution in

14 this matter. And I consider your remarks to be very pertinent.

15 Mr. Robinson.

16 MR. ROBINSON: Yes, thank you. And I also acknowledge the right

17 of the Prosecution to be concerned, and we would, of course, appreciate

18 their support in this situation because they, too, have an interest in

19 seeing that there's an effective Defence. I would simply, in addressing

20 what Mr. Nice has said, refer everyone to the Appeals Chamber decision

21 which appears to indicate that we are not allowed to withdraw during the

22 pre-trial phase and our duty is to do the best we can with the limited

23 resources that we have. And that's what we have been doing. But those

24 resources are very, very much underestimated for this case. And we will

25 not be able to be in a position to be prepared to offer an effective

Page 698

1 defence at trial unless something is changed. Thank you.

2 JUDGE ROBINSON: Thank you.

3 May I then ask the three accused persons whether they have

4 anything to say in relation to the conditions of their detention or

5 anything else relating to the trial. First, Mr. Milutinovic.

6 THE ACCUSED MILUTINOVIC: [Interpretation] Yes, please.

7 JUDGE ROBINSON: You may sit. Do you have anything to say?

8 THE ACCUSED MILUTINOVIC: [Interpretation] No, Your Honour. Thank

9 you very much, Your Honour.

10 JUDGE ROBINSON: And Mr. Ojdanic.

11 THE ACCUSED OJDANIC: [Interpretation] Yes, Your Honour, I do.

12 Your Honour, it has been more than two years since the law on cooperation

13 with The Hague Tribunal was adopted by my country. As soon as the law was

14 passed, I, as an accused, arrived before this Tribunal respecting that

15 law. From then to this day, I have not spent more than five minutes of

16 the court's time. Therefore, I now ask your leave to speak for about 3

17 minutes about the conditions that I find deeply distressing.

18 First of all, the fact that among the accused there are people who

19 honourably, professionally, and morally, and with high ethical standards

20 defended their country and its territorial integrity, but those who for

21 years, not to say, decades have been planning, organising, ordering, or

22 personally committing horrendous crimes on the territory of Kosovo and

23 Metohija are ethnically cleansing Kosovo and Metohija of Serbs and other

24 non-Albanians are not here. In their documents of 1999, among other

25 terrible things, in the political declaration, they say that the

Page 699

1 Liberation Army of Kosovo started this war under the slogan "either Kosovo

2 will be ours or it will all be reduced to dust and ashes." I wish to

3 believe that this great injustice, in my view, will soon be corrected.

4 Secondly, I have come before this Tribunal, and I am ready to

5 answer before this Tribunal or anybody else as to what I did and how I did

6 it. As a soldier and as a human being, I am proud of the fact in which I

7 fulfilled the vow I made to my people and my homeland. I'm also happy

8 because I feel completely not guilty, and I can look anyone on this planet

9 in the eye.

10 Thank you for allowing me to speak. I do not wish to repeat what

11 my Defence counsel, Mr. Robinson, has said. But I entreat Your Honour to

12 do your very best to make sure that my Defence and others' Defence is not

13 subservient to the work of the Prosecution, which every day feeds us

14 hundreds and thousands of hundreds of exculpatory and other material, and

15 rightly so. It would really be a sin for a person to be convicted here

16 because someone has not approved sufficient funds for a proper Defence.

17 To be quite honest, I cannot look them in the eye, but I am doing my very

18 best as far as I'm able to help my counsel so that they can prepare as

19 best they can. Thank you. And I apologise if I have overstepped my time

20 that I asked you for. Thank you very much.

21 JUDGE ROBINSON: Thank you, Mr. Ojdanic.

22 Mr. Sainovic.

23 THE ACCUSED SAINOVIC: [Interpretation] Your Honour, thank you. I

24 have nothing to say.

25 JUDGE ROBINSON: There being no other matters, the hearing is

Page 700

1 adjourned.

2 --- Whereupon the Status Conference adjourned

3 at 3.15 p.m.