Tribunal Criminal Tribunal for the Former Yugoslavia

Page 201

1 Friday, 11 June 2004

2 [Status Conference]

3 [Open session]

4 --- Upon commencing at 2.15 p.m.

5 [The accused entered court]

6 JUDGE AGIUS: Yes. Good afternoon, everybody. Madam Registrar,

7 could you call the case, please.

8 THE REGISTRAR: Case number IT-95-13/1-PT, the Prosecutor versus

9 Mile Mrksic, Miroslav Radic, and Veselin Sljivancanin.

10 JUDGE AGIUS: Yes. I welcome you all, and I welcome you as well.

11 I want to make sure, first and foremost, that you can follow the

12 proceedings in a language that you can understand, so I will start with

13 you, Mr. Mrksic.

14 Can you follow the proceedings in a language that you can

15 understand?

16 THE ACCUSED MRKSIC: [Interpretation] Yes, I can.

17 JUDGE AGIUS: Thank you.

18 Mr. Radic, can you follow the proceedings in a language you can

19 understand?

20 THE ACCUSED RADIC: [Interpretation] Yes, I can understand. Thank

21 you.

22 JUDGE AGIUS: And Mr. Sljivancanin, can you follow the proceedings

23 in a language you can understand?

24 THE ACCUSED SLJIVANCANIN: [Interpretation] Yes, Your Honour. Good

25 afternoon, gentlemen. Yes, I can follow the proceedings.

Page 202

1 JUDGE AGIUS: I thank you, and good afternoon to you all.

2 Appearances for the Prosecution.

3 MS. SELLERS: Good afternoon, Your Honour. I'm Patricia Sellers

4 representing the Prosecution today, assisted by co-counsel Kristina Carey,

5 Joanne Richardson, and our case manager is Diane Boles.

6 JUDGE AGIUS: Yes. What happened to Mr. Wubben?

7 MS. SELLERS: Mr. Wubben is on mission this week, and he'll return

8 to the office on Monday.

9 JUDGE AGIUS: He's still in the case.

10 MS. SELLERS: Yes, he is, Your Honour.

11 JUDGE AGIUS: Okay. I just wanted to make sure. I thank you,

12 madam, and good afternoon.

13 Appearances for accused Mrksic.

14 MR. VASIC: [Interpretation] Good afternoon, Your Honours. The

15 Defence for General Mile Mrksic is Mr. Miroslav Vasic. Thank you.

16 JUDGE AGIUS: I thank you, Mr. Vasic, and good afternoon to you.

17 Appearances for Mr. Radic.

18 MS. TAPUSKOVIC: [Interpretation] Good afternoon. Mr. Radic will

19 be represented by Ms. Tapuskovic, attorney from Belgrade, as co-counsel.

20 JUDGE AGIUS: I thank you, madam, and good afternoon to you.

21 Appearances for Mr. Sljivancanin.

22 MR. LUKIC: [Interpretation] Good afternoon, Your Honour. Good

23 afternoon to all the parties in the proceedings. Mr. Sljivancanin will be

24 represented today by Mr. Novak Lukic, as lead counsel, and Mr. Momcilo

25 Bulatovic is also present in the courtroom as co-counsel. Thank you.

Page 203

1 JUDGE AGIUS: I thank you, and good afternoon to you both.

2 Mr. Borovic is still in the case?

3 MS. TAPUSKOVIC: [Interpretation] Yes, Your Honour, but this time

4 Mr. Borovic has decided that I should be present at this Status Conference

5 today. Thank you.

6 JUDGE AGIUS: I thank you.

7 So just for formality's sake, may I repeat once more what the

8 purpose of the Status Conference is. You will all recall that the last

9 Status Conference was held on the 16th of February of this year, and in

10 terms of Rule 65 bis, the Pre-Trial Judge is bound to reconvene another --

11 to convene another Status Conference within 120 days after the last Status

12 Conference. I have convened the Status Conference for today, and in terms

13 of Rule 65 bis, the purpose is to organise exchanges between the parties,

14 with a view to ensuring an expeditious preparation for the trial, and I

15 must say that in this respect and the past Status Conference, I have had

16 full cooperation from both sides, which I appreciate, and also to allow,

17 give an opportunity to the accused to raise any matter in relation to the

18 mental and physical condition. And in this, I also usually include the

19 condition of detention as it relates to detention.

20 You are aware that in preparation for this particular -- you're

21 not hearing?

22 THE ACCUSED MRKSIC: [Interpretation] [No interpretation]

23 JUDGE AGIUS: You have no translation. Is it okay now?

24 THE ACCUSED MRKSIC: [Interpretation] It's all right now,

25 Your Honour. I can hear it now.

Page 204

1 JUDGE AGIUS: I think I will just read out what I said already for

2 your benefit. I was explaining what the purpose of this Status Conference

3 is, a Status Conference which is being convened within the 120-day period

4 laid down by Rule 65 bis, following the last Status Conference, the

5 purpose being to organise exchanges between the parties so as to ensure an

6 expeditious preparation for trial, and secondly, to give you, each one of

7 you, the opportunity to raise any issue in relation to your mental and

8 physical condition, as well as your conditions of detention.

9 You are also aware that in preparation for this particular Status

10 Conference, I authorised my Senior Legal Officer to hold a 65 ter meeting

11 with the lawyers, Prosecution and Defence, in preparation for this Status

12 Conference. The 65 ter meeting was held on Wednesday of this week, on the

13 9th, at 11.00 in the morning. Several issues were raised during this 65

14 ter meeting, some of which I will be referring to very briefly as we go

15 along, and we will only concentrate on those issues that were not

16 accompanied with a conclusion during this 65 ter meeting. But I will

17 mention what was discussed for your sake, because obviously you were not

18 present for this meeting.

19 I will start with the outstanding motions. There was an

20 outstanding motion on the level of the case. I have been informed that

21 this has now been decided by the Registrar precisely today. I don't know

22 if you are aware of the decision. You are not aware -- Mr. Vasic.

23 MR. VASIC: [Interpretation] Your Honour, unfortunately, we still

24 have not been informed about that. We did check our lockers today, but we

25 did not find that decision there.

Page 205

1 JUDGE AGIUS: Yes. This is a decision which your client -- upon

2 the motion that your client filed. Mr. Roberts, can you check --

3 MR. VASIC: [Interpretation] Yes, Your Honour.

4 [Trial Chamber and legal officer confer]

5 JUDGE AGIUS: I'm being informed that actually it's not a decision

6 which is being filed; it's a decision which is being communicated to you

7 individually, either to your clients or to you directly. I think,

8 Mr. Vasic, it's Mr. -- either you or your client. I wouldn't know

9 exactly. We were told that it would be communicated to you before the

10 sitting. I can't say that it hasn't been, because I don't know whether

11 you have checked your letter box. So but I am informing you that based on

12 the information that I have, the decision has been taken and that it has

13 been or should be communicated to you today. And I'm sure you will know

14 how to regulate yourself after that.

15 MR. VASIC: [Interpretation] Thank you, Your Honour. We will be

16 expecting the decision, and thank you for informing us.

17 JUDGE AGIUS: Okay. Thank you.

18 Then there is a request by accused Radic, based on his partial

19 indigence. Basically, just to inform also the public, on the 27th of

20 October of last year, counsel for accused Radic submitted a request to

21 review the Registrar's decision of October 7 of the same year, which,

22 inter alia, states that the accused should bear the costs associated with

23 223 hours of investigative and legal assistance work at the pre-trial

24 stage. The Radic Defence, in its motion, requested the Trial Chamber to

25 rule that the cost of 223 hours of investigative work at the pre-trial

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Page 207

1 stage be instead borne by the Tribunal.

2 By order of the Trial Chamber, the Registry filed comments and

3 associated material on this matter on the motion on the 12th of January of

4 this year. It also requested the Trial Chamber to deny the accused's

5 motion and to confirm the Registrar's decision on partial indigence of the

6 accused. Defence counsel for Radic responded on the 26th of February --

7 of January, 2004, maintaining its position, and reiterating its request to

8 the Trial Chamber to accept -- uphold the motion and review the

9 Registrar's decision.

10 There's nothing much has happened after this. In view of the

11 implementation by OLAD of a new system of legal aid, as of the beginning

12 of May, the question was raised by the senior -- by my Senior Legal

13 Officer during the 65 ter meeting you had two days ago with a view to

14 exploring together with you whether this new system could impact -- have

15 an impact on the Registrar's decision.

16 I am informed by my Senior Legal Officer that co-counsel for

17 Mr. Radic indicated that there had indeed been an impact on the

18 Sljivancanin case and that they were simply waiting for a decision before

19 taking any further steps. We are, or rather, I am watching the situation

20 and will be following this matter up with the Senior Legal Officer, with

21 whom I have had very little chance to converse after this 65 ter meeting

22 because of other matters that I was attending and he was attending too.

23 This matter will receive my utmost attention and I will pursue it and hand

24 down the decision at the earliest.

25 Yes, madam.

Page 208

1 MS. TAPUSKOVIC: [Interpretation] Your Honour -- excuse me just for

2 a minute, because it seems there aren't enough microphones. At the 65 ter

3 Conference, we only slightly touched upon this matter. The new policy of

4 appointing an official counsel, Defence counsel, went into force on the

5 4th of May of this year, and on the same day, the Registrar made a new

6 revised decision regarding the accused Sljivancanin. We all received a

7 kind of form explaining how this new policy works at the Tribunal, the

8 policy of appointing a counsel. However, at the moment, this is a policy

9 that should be applied to new cases. Of course, we will leave that up to

10 the Chamber and to the Registrar to decide whether a new amended

11 indictment would count as a new case when we are talking about the

12 appointment of a defence counsel to an accused. We believe that it would

13 be too early to decide in any way whether the new policy is something that

14 can be applied to the rest of the accused. Thank you.

15 JUDGE AGIUS: I thank you, Madam Tapuskovic. Tapuskovic. Pardon

16 me if I sometimes mess up the names. As I said, I will pursue the matter

17 and we'll deal with it, and hopefully the position should -- will have

18 crystallised or should crystallise before the next Status Conference. I do

19 not anticipate this to drag on indefinitely.

20 There is a third motion, which is very important, a motion which

21 refers -- goes back to accused Mrksic and Sljivancanin. And for the

22 record, I will just state for the time being that initially it was accused

23 Mrksic who started the ball rolling, and on the 12th of March of this

24 year, through his counsel, he filed a preliminary motion challenging

25 several defects in the form of the modified consolidated amended

Page 209

1 indictment, issued on the 9th of February, 2004. This motion challenging

2 the indictment, the consolidated, amended indictment, was followed by a

3 response which was filed by the Prosecution on the 25th of March, 2004.

4 Now, at the same time, on the 11th of March, counsel for

5 Sljivancanin also filed a preliminary motion challenging as well certain

6 defects in the form of the modified, consolidated, amended indictment, and

7 the matter, or the motion was responded to by the Prosecution on the same

8 day as in the case of Mrksic, that is, on the 25th of March, 2004.

9 As you know, this matter is still pending. It requires certain

10 attention, more than under normal circumstances. And I am informed that

11 in the course of the 65 ter meeting you had, Mr. Von Hebel, as the

12 Senior Legal Officer, informed you, Mr. Vasic, and you, Mr. Bulatovic or

13 Mr. Lukic, whoever of you was present, that the matter is still pending.

14 We are giving it some attention. We are not -- we have not yet started

15 giving it full attention. It requires both myself, the other two Judges,

16 as well as Mr. Von Hebel and the rest of the staff, to concentrate fully

17 on it. It requires a lot of attention, as I explained, and at the moment

18 I am engaged in the process of elaborating the judgement in the Brdjanin

19 case and the drafting, and I will continue to be so engaged until the end

20 of August.

21 However, I do have someone dealing precisely -- in fact, I have

22 two, one legal officer and one intern, researching the matters that you

23 have raised. I cannot report to you any significant progress, but as soon

24 as we are in a position to engage ourselves fully in it, we will then

25 hopefully come back to you with our decision. But that's the position.

Page 210

1 I'm being very frank with you. Judge Parker is reaching the final stages

2 in his case. I have reached the final stages in my case. Mr. Von Hebel

3 is dealing with all the three Judges, plus the other Judges in Trial

4 Chamber II, and he is up to his neck with work. The rest of our staff are

5 engaged in the drafting process and in the research process. We can't

6 work out miracles. My apologies to you, but we are doing our best.

7 And I would close this chapter here on motions. Are there any

8 comments that either -- from your side, Madam Prosecutor, or from your

9 side, Defence counsel, you would like to raise, or motions.

10 MS. SELLERS: No, Your Honour. We have no comments pertaining to

11 motions.

12 JUDGE AGIUS: I thank you, madam.

13 Mr. Vasic.

14 MR. VASIC: [Interpretation] No, we do not have anything to add,

15 Your Honour. Thank you very much for informing us.

16 JUDGE AGIUS: Ms. Tapuskovic.

17 MS. TAPUSKOVIC: [Interpretation] Your Honour, I have already said

18 what I meant to say about the motion regarding the work of the

19 investigators. Since the accused Radic has not objected to the indictment

20 again, we have nothing further to say on that.

21 JUDGE AGIUS: Okay. And I suppose the same applies to you,

22 Mr. Lukic.

23 MR. LUKIC: [Interpretation] Yes, Your Honour. We have no further

24 objections.

25 JUDGE AGIUS: I thank you all. And I will open the discussion on

Page 211

1 disclosures. I propose to deal with the different types of disclosures

2 that are dealt with by our Rules, starting with Rule 66(A), paragraph (i)

3 material. I am informed, but please correct me if I'm wrong, that defence

4 counsel for the three accused have agreed that the material that should

5 have been disclosed under this particular paragraph, part of Rule 66, has

6 indeed been disclosed to each and every one of you. I can refer you to

7 transcript pages 80 and 113, and the 65 ter meeting that was convened on

8 my instructions, upon my instructions, way back in October of 2002. Is

9 that correct?

10 MR. VASIC: [Interpretation] Yes, Your Honour, that is correct.

11 Thank you.

12 JUDGE AGIUS: Thank you.

13 MR. VASIC: [Interpretation] And that also applies to all of the

14 defence teams. I just want to make things a little bit shorter. My

15 colleagues have authorised me to speak on their behalf.

16 JUDGE AGIUS: Okay. So we then come next to statements which fall

17 under paragraph (ii) of part A of Rule 66. And I refer you to a partially

18 confidential Prosecution's first report concerning disclosure. I need not

19 go into much detail, especially since it is partially confidential. You

20 will recall that this was filed on the 1st of April, 2003. Prosecution

21 did not mean to play a joke on anyone. It was not an April fool's report,

22 first report. And it detailed in its confidential attachment the

23 materials disclosed to the defence counsel for the three accused.

24 At the time, accused Sljivancanin, I think, was still

25 unrepresented. The Prosecution has since -- at least, this is what I am

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Page 213

1 informed -- has since assured counsel for accused Sljivancanin that the

2 material which he received from his client was the same that had been

3 disclosed pursuant to the relevant Rules, including Rule 68, to counsel

4 for the other two accused. I want to confirm that this is so and that you

5 are happy.

6 MR. LUKIC: [Interpretation] That is correct, Your Honour.

7 JUDGE AGIUS: Thank you, Mr. Lukic.

8 Madam Tapuskovic, the same?

9 MS. TAPUSKOVIC: [Interpretation] Yes, Your Honour. I expected my

10 colleague to confirm that, since we already exchanged information and have

11 confirmed that we all received the same sets of material from the

12 Prosecution. Thank you.

13 JUDGE AGIUS: That's important, especially from the Sljivancanin

14 defence, I think.

15 Then at the 16th of February of this year, we had the last Status

16 Conference, as I explained earlier, and the Prosecution informed that it

17 had disclosed the statements or testimonies or evidence of 23 witnesses

18 from its ongoing witness list, which at the time, Madam Sellers declared

19 that it contained something like anything between 60 and 80 witnesses at

20 the time. I don't know if the situation, the position is still the same.

21 Prosecution, at the -- during that Status Conference, stressed

22 that the case had not yet been prioritised with the Evidence Unit but that

23 they would do their level best, they would endeavour to at least turn over

24 the statements of witnesses that have previously testified before this

25 Tribunal, including, in order to do so, seeking variation of protective

Page 214

1 measures when applicable.

2 The Defence for all three accused considered the extent of this

3 disclosure to be insufficient at that stage. This was in February. And

4 so we will need to update ourselves on the situation.

5 At the time, I had encouraged or exhorted the Prosecution to

6 accelerate the process, as you will recall, process of disclosure, and I

7 had pointed out that an assessment of the situation of this disclosure

8 will be made today. Of course, I realise, I am fully aware, that much

9 will depend on the progress made until now, and that I had indicated that

10 if I had reason to feel unhappy with the process -- with the progress

11 made, then I was reserving for myself the right to fix a time limit within

12 which the Prosecution would then fulfil its disclosure obligations.

13 I am informed by Mr. Von Hebel that the issues rising out of

14 Rule 66(A)(ii) was addressed in detail. I'm told in the course of the --

15 last Wednesday's 65 ter meeting, during which the Prosecution provided an

16 update on its disclosure activities since the February Status Conference.

17 I am informed - again, I stand to be corrected - that effectively the

18 Prosecution has disclosed further statements of nine -- nine further

19 witness statements. If the arithmetic of the Trial Chamber is correct,

20 this basically means that the Prosecution has now disclosed 31 of a total

21 of about 53 to 55 statements for witnesses expected to be called. For the

22 remaining 22 statements, roughly, I am told that the Prosecution will be

23 filing protective measures prior to disclosure. Prosecution, in the

24 course of the 65 ter meeting, also clarified that they expect to add a few

25 witnesses from those who are presently testifying in the Ovcara trial.

Page 215

1 You are fully familiar with the Ovcara trial, Mr. Radic, Mr. Mrksic, and

2 Mr. Sljivancanin. I don't think I need to explain what I'm talking about.

3 If I need to, please let me know. Okay. Taking place in Serbia.

4 So far, I will stop here for the time being. Is there anything in

5 the statement that I have made that anyone of you would like to correct?

6 Yes.

7 MS. SELLERS: Your Honour, no. The Prosecution believes that that

8 is an accurate reflection of what was discussed in the 65 ter and the

9 actual state of our disclosure obligation under 66(A).

10 JUDGE AGIUS: Thank you, Madam Sellers. The same with the

11 Defence. If I see no objection, I take it that -- yes, Mr. Vasic.

12 MR. VASIC: [Interpretation] Thank you, Your Honour. This

13 indicates that obviously we have made some headway in terms of discovery.

14 The only thing that perplexes the Defence is the discovery of the 26th of

15 April, 2004. There are 208 statements. But a lot of material was

16 supplied to the Defence, according to Rule 66 and Rule 68 at the same

17 time. So perhaps after the Status Conference, the Defence teams could

18 meet with our colleagues from the Prosecution to look through the names of

19 the 31 witnesses whose statements were disclosed to us. Because, as I

20 said, the material was disclosed to us in accordance with two different

21 Rules. That is the only thing that perplexes the Defence at this point,

22 and I say this again on behalf of all three Defence teams.

23 MS. TAPUSKOVIC: [Interpretation] Your Honour, I would just like to

24 add one more thing. So far we have received from the Prosecution three

25 reports on disclosure. These are very useful documents for the Defence.

Page 216

1 The last report was received in the month of October. We expected to get

2 one perhaps prior to this Status Conference because some progress had been

3 made in this disclosure and discovery process.

4 We would appreciate it if the Prosecution could keep us abreast of

5 things, perhaps not only on the eve of Status Conferences, so that the

6 teams could collate documentation amongst themselves and that we could

7 communicate with the Prosecution and establish the exact quantity of the

8 disclosed materials. Thank you.

9 JUDGE AGIUS: Thank you, Madam Tapuskovic. In fact, what you

10 stated, and particularly what you, Mr. Vasic, stated, leads me straight

11 into the next point that I have included in the agenda following the

12 report made to me by Mr. Von Hebel. I am informed, indeed, that in the

13 course of the 65 ter meeting, your perplexity was -- as to whether certain

14 statements were being disclosed under Rule 66 or under Rule 68 was made

15 clear, and I have the following note, which I have based on Mr. Von

16 Hebel's information or report.

17 Defence counsel raised the issue that there seems to be confusion

18 about whether statements are being disclosed pursuant to Rule 66 or Rule

19 68. I am also informed that this was highlighted as being an important

20 issue because of the priority which must be assigned to the translation of

21 66 -- Rule 66(A)(ii) statements. But I am also informed that the

22 Prosecution clarified in the course of the 65 ter meeting that the 31

23 witness statements disclosed to date were all disclosed pursuant to

24 Rule 66(A)(ii), as distinguished from the statements and documents from

25 the Ovcara trial, which were disclosed pursuant to Rule 68.

Page 217

1 I will come to these even later on. I have taken note of what you

2 have stated. If you still see the utility of having a short, informal

3 meeting with the Prosecution after the Status Conference, I am sure that

4 there will be full cooperation from the Prosecution, because this is a

5 matter that, if clarified further, would only benefit the Trial Chamber.

6 So I encourage you, if there is still -- I exhort you, if there is still

7 any confusion in the minds of the Defence, to clear that up with them

8 following the Status Conference, Ms. Sellers.

9 MS. SELLERS: Yes, Your Honour. I'd be more than willing to meet

10 with our colleagues to clarify any other disclosure issues, including the

11 ones that are before us right now.

12 JUDGE AGIUS: And again, you will have noticed that I combined the

13 issue of disclosure under 66 rather than under 68 in connection with

14 translation problems, which, as you are aware, this case is facing. I am

15 informed, and I'm not happy with the situation, but I'm also aware that

16 this is not something which is unique to this case, but it is also

17 applicable to other cases pending before this Tribunal, the issue of

18 translation of disclosed documents was raised, and it was submitted that

19 it is critical. Counsel for Mr. Radic noted that of the nine witness

20 statements recently disclosed pursuant to -- the nine witness statements I

21 mentioned earlier, only one had been provided in B/C/S. The Defence

22 counsel complained that this is causing delays for the Defence because

23 counsel, of course, is required to provide his client or her client with

24 the translation and then even enter into some kind of discussion with the

25 client on the contents of the statement.

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Page 219

1 If this has to be done before the translation is effectively

2 provided, it entails a lot of work on the part of the Defence. It's not

3 practical. So my concern is that this matter is given priority, it is

4 prioritised, so as to allay the concerns of the defence teams and also

5 lessen the burden that each one of them has to carry.

6 There is another aspect which was raised during the 65 ter

7 meeting, which I frankly was tempted not to refer to. But if the

8 situation remains as it is, there is another problem. If the Defence --

9 if defence counsel are necessarily engaged in this additional work that

10 they have to undertake in order to keep their clients posted with the

11 contents of these statements, it seems that the matter cannot be brought

12 up with the Registrar as forming the basis for a claim for compensation.

13 Of course, I mean, I do not have any power to interfere with the

14 discretion that is reserved under our law, under our Statute and our Rules

15 to the Registrar. On the other hand, it's not fair that the defence

16 counsel are put in that position, or if they are already in that position,

17 that this situation is prolonged much further.

18 So what I am going to suggest to you is this: In between Status

19 Conferences, you, in particular, Prosecution, are in a much better

20 position than I am to make an assessment of what the likely progress is,

21 or what -- where we stand, in other words. The same applies to you. If

22 the situation is protracted, is prolonged, and we approach the next Status

23 Conference with you receiving further statements without the previous one

24 having been translated, I invite you both to file either a report or a

25 motion to me, and then I will provide as necessary. For the time being,

Page 220

1 I'm not going to do so, because I do not have concrete information that

2 would strengthen my hand and justify my handing down an order. But if the

3 situation gets worse or doesn't get any better, then I want to know so

4 that I will intervene within the powers that are reserved for me as the

5 Pre-Trial Judge in these and other matters. So do I get my message home?

6 Thank you.

7 Yes, Mr. Lukic.

8 MR. LUKIC: [Interpretation] Your Honour, on behalf of all three

9 defence teams, I wish to thank you for this approach of yours to this

10 subject which is of such great importance to us. We will do our best to

11 follow matters in cooperation with the Prosecution. We understand how

12 busy they are too. I wish to remind you of another thing that is related

13 to this subject matter.

14 From the Prosecution, we received all the transcripts of the

15 Dokmanovic trial. We got them from the Prosecution, and of course there's

16 no need for me to explain how valuable they are to us. We ourselves

17 interpret the transcripts to our clients. That's what we mentioned at the

18 65 ter meeting. Every translation of documents into B/C/S makes our work

19 much, much easier and we have such a great deal of work anyway, as we

20 explained to the Registry. You know that the Trial Chamber of the

21 Milosevic trial will give us the Milosevic trial documents as well, and we

22 have to analyse them together with our clients. So that is what I wanted

23 to highlight so that you would understand the importance of receiving as

24 many documents as possible in B/C/S. Thank you.

25 JUDGE AGIUS: And I was coming to the Dokmanovic documents,

Page 221

1 because I have full information on what went on during the 65 ter meeting.

2 And it is precisely also because of what you have just mentioned about

3 this that I am refraining from making any orders today. Because, as I

4 said, I usually look well before I jump, before I leap, because I want to

5 make sure what is involved. If we're talking of a few pages, from my

6 experience here in these past two and a half years plus, when it's

7 necessary, all the translation units will come forward. They are very

8 cooperative, extremely cooperative, considering the amount of work and the

9 burden that they have to carry, and they try, do their level best, to keep

10 us happy.

11 Of course, there are limits. I cannot explain -- I cannot expect

12 to impose on them beyond what they can actually carry. However, it can

13 become a question of prioritising, and in that case we will have to see

14 precisely where we stand vis-a-vis other cases as well and vis-a-vis other

15 translations for other cases that are being undertaken. What I promise

16 you is that I will do my best to try and lessen your burden, and also the

17 burden of the Prosecution arising from their duty to disclose.

18 There is a further matter that was discussed within the context of

19 disclosure during the 65 ter meeting, which I am not that clear in my mind

20 as to what went on and what was agreed. I have on record from Mr. Von

21 Hebel that the Prosecution, apart from undertaking to establish and to

22 what extent translation of the 31 disclosed statements has been provided

23 and to follow up with respect to the Dokmanovic statements that you

24 pointed out, Prosecution then requested the Defence to make available to

25 it any material which any of the three teams managed to obtain from the

Page 222

1 military archives. Perhaps you could enlighten me on this particular

2 matter. This is all the information I have. As I told you, I haven't had

3 time to go any deeper with Mr. Von Hebel. Yes, Ms. Sellers.

4 MS. SELLERS: Yes. Thank you, Your Honour. I would like to say

5 that that was a comment that was made in the spirit of colleague

6 cooperation, but I would suggest that that's something that we discuss

7 with the defence counsel possibly in the meeting after our hearing before

8 you today. And, Your Honour, we would get back to you if there's anything

9 that the Trial Chamber should be appraised of.

10 JUDGE AGIUS: All right. Okay. Thank you.

11 Is That agreeable, Mr. Vasic, Madam Tapuskovic, Mr. Lukic?

12 MR. VASIC: [Interpretation] Your Honour, the Defence was taken

13 aback a bit by what our learned friends of the Prosecution said. First of

14 all, because things are being put as if the Defence has these documents

15 from the military archives. I don't know where my learned friend get that

16 kind of information from. Secondly, on which basis could the Prosecution

17 seek these documents at this stage of the proceedings? So we are taken

18 aback by this, namely, taking as a matter of fact that the Defence has

19 these documents. Could our learned friends of the Prosecution please put

20 this in writing and tell us where they get these sources from. So could

21 we learn how they ask us to do this. Thank you.

22 JUDGE AGIUS: Yes, Mr. Lukic.

23 MR. LUKIC: [Interpretation] This subject was raised at the 65 ter

24 meeting when I presented our problems that we have in relation to the

25 National Council for Cooperation with the Hague Tribunal and the

Page 223

1 possibility for the defence to get the documents it seeks through official

2 channels. But I must say that I was taken aback by the position of the

3 Prosecution because, as far as I know, not a single Defence is at the

4 stage of reciprocal disclosure. So even if I did have some documents now,

5 unless we went into reciprocal disclosure, why would I have to disclose

6 anything now? This was a technical objection because I saw that the

7 Prosecution did receive from the Belgrade court the Belgrade trial, the

8 Ovcara trial, if I can put it that way, they received these documents in

9 English, so we asked them to give us these transcripts in B/C/S so that we

10 can have the same thing. And that is what was derived from the documents

11 that they gave us. However my position is that even if I did have some

12 documents and if I'm not in the process of reciprocal discovery, I really

13 have no obligation in the pre-trial stage to give the Prosecution any

14 documents.

15 JUDGE AGIUS: Anyway, you know what the position with regard to

16 reciprocal disclosure was under the Rules and how it is now, and things

17 may also change in the very near future. I will not comment any further

18 on this matter. The Trial Chamber is not seized with any motion. It's

19 just information that I have on a subject that was discussed during the 65

20 ter meeting, and I registered that there was disagreement on this matter.

21 I will pronounce myself alone as Pre-Trial Judge or collectively with the

22 other two Judges, depending on whether there will be an ad hoc motion.

23 Yes. If there can be one.

24 MS. SELLERS: Excuse me, Your Honour. Might I take the floor for

25 a second.

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Page 225


2 MS. SELLERS: I would just like to reiterate that we have not put

3 anywhere on the record or in any way think that the Defence at this time

4 is in possession of any of these documents. I would certainly want to

5 make that clear. And certainly agree that we can discuss this matter. I

6 would also like to inform the Trial Chamber that the issue of documents in

7 the original language was raised by our learned colleagues and I believe

8 today that we have been able to provide them with all of those documents

9 in the original language, and we certainly hope that that will assist your

10 ability to represent your clients. Thank you, Your Honour.

11 JUDGE AGIUS: Okay. Disclosure under Rule 67, which, as you know,

12 has been amended. 65 -- Rule 67, which was amended way back during the

13 plenary, during the December plenary, and which deals with additional

14 disclosure, provides, inter alia, that within a time limit established by

15 the Trial Chamber or by the Trial Judge, the Defence shall notify the

16 Prosecution of its intent to offer the defence of alibi and any special

17 defence. In addition, a new paragraph has been included in the Rules,

18 providing that if either party discovers additional evidence or material

19 which should have been disclosed earlier pursuant to the Rules, that party

20 shall immediately disclose that evidence or material to the other party

21 and the Trial Chamber, and the Trial Chamber.

22 I am informed that nothing was discussed relating to Rule 67

23 during the 65 ter meeting. I would like you to confirm this, first and

24 foremost, and then to indicate whether you would like to discuss anything

25 in the context of this particular Rule. Ms. Sellers.

Page 226

1 MS. SELLERS: Your Honour, I confirm that there was no discussion

2 on Rule 67 at the 65 ter meeting and I would just like to briefly speak

3 with my colleagues prior to responding to the second part of your

4 question.

5 JUDGE AGIUS: Yes. Thank you. In the meantime, I can consult the

6 three Defence counsel. Mr. Vasic.

7 MR. VASIC: [Interpretation] Thank you, Your Honour. I would like

8 to confirm what my learned friend said. Rule 67 disclosure was not

9 mentioned during the 65 ter Conference, and the position of the Defence

10 teams is that we cannot discuss this subject until the indictment is not

11 in place, until the preliminary motions are not resolved, and only then we

12 can take a position regarding this kind of disclosure with the

13 Prosecution.

14 JUDGE AGIUS: Is the position of Ms. Tapuskovic and Mr. Lukic the

15 same? Okay. I think that is a reasonable approach on the part of the

16 Defence. There is an important motion dealing with the indictment which

17 is still pending. Disclosure is not yet complete. And I think it would

18 be premature on my part, or on your part, to insist on establishing a time

19 limit under Rule 67 for the time being.

20 Ms. Sellers, do you agree?

21 MS. SELLERS: Yes, Your Honour, we would agree with the position

22 both of the Trial Chamber and our colleagues. We would also like to

23 reiterate that we understand that we still are in pre-trial in terms of

24 the indictment has not been completely confirmed. Thank you.

25 JUDGE AGIUS: All right. So that is perfect. Thank you. And I

Page 227

1 come to disclosure under Rule 68, which, as you know, has also been the

2 subject of some amendments and which probably again will be the subject of

3 further amendments within a month's time. Rule 68 provides, inter alia,

4 that the Prosecution shall, as soon as practicable, disclose to the

5 Defence any material which, in the actual knowledge of the Prosecutor -

6 this may change - may suggest the innocence or mitigate the guilt of the

7 accused or affect the credibility of Prosecution evidence, and secondly,

8 the Prosecution shall make available to the Defence in an electronic form

9 collections of relevant material held by it, together with appropriate

10 computer software with which the Defence can search such collections

11 electronically.

12 The Prosecution, as I explained earlier, within this context,

13 filed, on the 1st of August of last year, a first report concerning

14 disclosure, which was partially confidential. I have already referred to

15 it before. Then she followed up with a second report concerning

16 disclosure. This was filed on the 4th of September. And then we had a

17 final -- or an additional third, partially confidential report concerning

18 disclosure, to which Ms. Tapuskovic referred to, which was filed on the

19 21st of October. These three reports detail the material disclosed

20 pursuant to Rule 68 to the three accused so far.

21 Now, you will recall that when we had the last Status Conference

22 way back in February, 16th of February, and Rule 68 had already been

23 amended, I had expressed what I understood to be an ongoing exercise at

24 the time of disclosure, and I also tried to emphasise that it was

25 important, in my mind at least, to draw a distinction between the s the

Page 228

1 exculpatory material proper, which is specifically dealt with by one part

2 of Rule 68, and the rest of the material to be disclosed, which was not

3 previously dealt with by Rule 68 but which is now specifically dealt with

4 by Rule 68. The two are quite different. I would say they are radically

5 different.

6 We had agreed at the time that I was going to leave you free

7 completely, particularly the Prosecution, to make an assessment of the

8 situation as it emerged from a proper reading of Rule 68 and that you

9 would report back to the Trial Chamber today. I am informed by Mr. Von

10 Hebel that in the course of the 65 ter meeting, you, Ms. Sellers, or

11 whoever was present - I don't know whether you were all there or whether

12 some of you were there - you confirmed that 75 documents and 14 statements

13 from witnesses from the Ovcara trial currently taking place in Serbia had

14 been disclosed pursuant to Rule 68. These statements, according to what

15 is being reported back to me by Mr. Von Hebel, and in answer to what you

16 mentioned, Mr. Vasic, earlier on, these statements do not properly fall

17 within Rule 66(A)(ii), as they are not from witnesses in the instant case.

18 The Prosecution disclosed them out of an abundance of caution, I am

19 informed, in case there was any exculpatory material in them.

20 On this point, it was noted by the Prosecution that the Defence

21 request from the last 65 ter meeting for the Prosecution to disclose, if

22 in any doubt, without worrying about the Rule under which the disclosure

23 took place, was more or less being taken in a count being considered by

24 the Prosecution. The interesting development is that I am informed that

25 you were informed that the Prosecution intends to interview some of the

Page 229

1 Ovcara trial witnesses, with a view to ultimately eventually producing

2 them as witnesses before the Tribunal. Needless to say, I mean the

3 position will change legally if that will be the case. If that happens,

4 the statements that these future witnesses will make, provide to the

5 Prosecution, Prosecutor, will need to be disclosed under Rule 66(A)(ii).

6 I don't think I need to elaborate on this matter. It's clear enough. I

7 think it's satisfactory for you, and I understand that it's clear enough

8 for the Prosecution. All right?

9 MS. SELLERS: Yes, Your Honour. That is the position that the

10 Prosecution would take.

11 JUDGE AGIUS: And that basically brings an end -- brings me to the

12 end of the chapter dealing with disclosure, which has been a long one but

13 which is of fundamental importance in the pre-trial stage. We are moving.

14 We are moving slowly, but maybe not at an optimum performance, but I take

15 it that I cannot at the moment -- certainly I cannot pin the blame on the

16 Prosecution, and I don't think I can pin the blame on anyone else for the

17 time being. So hopefully we will progress in this sphere between now and

18 the next Status Conference in a way that will be satisfactory to all. Are

19 there any further comments that any one of you would like to make in the

20 context of disclosure? Disclosure under any of the sections or under any

21 of the Rules that I mentioned, 66, 67, 68. Yes, Ms. Sellers.

22 MS. SELLERS: No, Your Honour. The Prosecution has no further

23 issues regarding disclosure.

24 JUDGE AGIUS: I thank you, madam.

25 Mr. Vasic.

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Page 231

1 MR. VASIC: [Interpretation] No, Your Honour. We have no new

2 comments. Thank you very much.

3 JUDGE AGIUS: And I see some sign language --

4 MR. VASIC: [Interpretation] Speaking on behalf of all of the

5 Defence teams.

6 JUDGE AGIUS: I see sign language coming from your colleagues.

7 I'm happy to note that, because that enables me to move to the next item,

8 which is the date for trial, which I am sure is the matter that you are

9 most interested in. No date for trial has as yet been fixed. It doesn't

10 mean to say that we are ignoring the matter or that we are not giving it

11 enough attention. It is anticipated, but again much depends on several

12 other matters, it is anticipated that your trial will start in the first

13 part of 2005. That's if the situation of the Tribunal remains as it is.

14 There could be changes. There could be the burden, the load of the

15 Tribunal could become less, in which case, of course, your case would be

16 advanced. There could be more plea agreements, guilty pleas coming from

17 some of your colleagues detained in Scheveningen. But rebus sic stantibus

18 as matters stand at the moment, it is envisaged that the trial -- we

19 should be able to start the trial in 2005. There will be developments, I

20 suppose, which will impact on this date. And if it will impact on this

21 date, I am sure that it will not impact negatively, but it could only

22 impact positively.

23 So that is the position. I know it doesn't -- that this doesn't

24 make any one of you happy, but I'm afraid that we are not in a position to

25 do anything about it for the time being.

Page 232

1 Are there any comments on this matter, on this issue? Yes,

2 Mr. Lukic.

3 MR. LUKIC: [Interpretation] When I began this case, time meant

4 something to me. The beginning of trial. And if the beginning was put

5 off, that suited me in some way. It would give me more time to prepare

6 for the trial. But in speaking to my client, of course, we both felt that

7 as early a start as possible would be advantageous. But after sharing our

8 thoughts, all of the defence teams believe what was said at the 65 ter

9 Conference about the scheduling. But what you said in a couple of

10 sentences made me a little concerned, Your Honour. First of all, you said

11 that it would start in early 2005 and then you said in 2005. I think

12 these two pieces of information could be interpreted in different ways.

13 I'm speaking, I think, on behalf of all three of the accused that we would

14 all prefer it to be as soon as possible in 2005, and I would be very

15 concerned by the fact if you stand by this other sentence that this would

16 be the -- the trial would be in or during the course of 2005. That would

17 be something that could affect the mood of our clients and our explanation

18 to them about the burdens on the Trial Chamber, as well as the entire

19 Tribunal. First of all, we're speaking in the spirit of the Statute and

20 in the spirit of Articles 20 and 21 when we're talking about our concern

21 for the trial to start as soon as possible.

22 But -- so we would ask you then to clarify for us what you said

23 regarding the trial starting in early 2005 and in 2005. This other

24 sentence is something that is causing somewhat a little bit of concern for

25 us.

Page 233

1 JUDGE AGIUS: [Previous translation continues]... -- is that there

2 is no fixed date. 2005 is the year in which there will be fresh elections

3 for the -- of the Judges of this Tribunal. 2005 is the year in which the

4 term of office of the current incumbent -- list of incumbent ad litem

5 Judges lapses as well. So I can only say that it is envisaged, it is

6 hoped, that we will be able to start this case in the beginning of 2005.

7 The decision is -- ultimately does not rest with me, as you know. It

8 rests with others, who will take into stock the progress of this

9 pre-trial -- these pre-trial proceedings. The estimate that we will have

10 of the duration of the trial. Any steps that I might take in due course

11 in curtailing, reducing the number of witnesses or establishing a time

12 limit within which the Prosecution, for example, is to finish its case,

13 and same with the Defence. There are many ifs and buts, et cetera. But

14 the thing is this, that our main concern is your main concern, and namely,

15 is to try to give the accused a trial within a reasonable time. A

16 reasonable time, in the context of the circumstances which pertain to the

17 case, and also to the circumstances of the Tribunal. We will do our level

18 best. If we could start it in January -- in December of 2004, I can

19 assure you that we will start it in December of 2004 and we will not wait

20 for 2005. But I cannot then tell you it will definitely start in January

21 of 2005. I could just give one simple explanation of a problem that could

22 arise.

23 Depending on how long this trial will be anticipated to last, we

24 could find ourselves in a position where we would not be able to appoint

25 any ad litem Judges to sit with a permanent Judge, because the term of the

Page 234

1 ad litem Judges would lapse in the meantime. The term of the permanent

2 Judges will lapse one month after. So we will need to take proper stock

3 of the situation as we go along. There are problems, problems which we

4 are very much determined to surmount, in the interest of each of the

5 accused that is awaiting trial here, particularly those accused who have

6 not benefitted from provisional release. I can assure you that I am fully

7 aware of the situation, that I will do my level best, but I -- of course,

8 I cannot promise a date and a month. And even if I did, it will not be a

9 serious undertaking on my part, knowing what the circumstances and the

10 situation is. But we will do our best.

11 Any further comments on this matter? No.

12 Agreed facts. You know that our Rules also envisage the

13 possibility of the teams, Prosecution and Defence, coming together and

14 agreeing on certain facts. I am fully aware that we are still at a

15 relatively early stage in the proceedings; however, you might, and I would

16 suggest that you might start thinking on this. And I can tell you why.

17 Carrying on the issue that I have just finished dealing with, namely, that

18 the smoother the road that you prepare for the Trial Chamber, and the

19 shorter it is, the earlier we can start and finish the case. So if there

20 are any facts that you could agree upon, then please do sit down and

21 cooperate with one another and come back to us, and we will take notice of

22 them. And it may carry a lot of importance, have an impact on the

23 duration of the case. So I would exhort you to take this -- give this

24 matter your attention, even at this stage, recognising that it is an early

25 stage. But you may be aware of certain facts that you could agree upon.

Page 235

1 All right?

2 I'm not going to ask for a feedback from any one of you at this

3 stage on this matter, but I will face you again with it in the next Status

4 Conference.

5 Before I address each one of the accused personally on other

6 matters, is there any matter that you would like to raise in addition to

7 what we have been discussing, Ms. Sellers?

8 MS. SELLERS: No, Your Honour. The Prosecution has no other

9 matters to raise with you today.

10 JUDGE AGIUS: Thank you.

11 Mr. Vasic.

12 MR. VASIC: [Interpretation] Thank you, Your Honour. I would like

13 to initiate a question, but I am afraid that I would need to go into

14 private session for a moment.

15 JUDGE AGIUS: With pleasure.

16 MR. VASIC: [Interpretation] Thank you.

17 JUDGE AGIUS: Let's go into private session for a while, please.

18 [Private session]

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

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Page 244

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 [Open session]

12 JUDGE AGIUS: Yes, we are in open session, having closed this

13 section. Are there any other matters that you would like to raise before

14 I address the accused? I see none.

15 So let's start with you, Mr. Mrksic. I explained to you earlier

16 on that the purpose -- one of the purposes of the Status Conference is to

17 give you an opportunity to raise any matter, any issue relating to your

18 mental and physical condition, as well as your state of detention. Would

19 you like to enter a statement on any of these matters or these issues?

20 THE ACCUSED MRKSIC: [Interpretation] Your Honour, I have nothing

21 to state which I have not said earlier on. Everything is fine. Thank

22 you.

23 JUDGE AGIUS: Thank you.

24 Mr. Radic.

25 THE ACCUSED RADIC: [Interpretation] Your Honour, I have no

Page 245

1 problems. My health is stable. And I thank you for your interest.

2 JUDGE AGIUS: Thank you.

3 And Mr. Sljivancanin.

4 THE ACCUSED SLJIVANCANIN: [Interpretation] Mr. President, this is

5 the question that is put at all sessions, but I'm saying yet again I do

6 not feel well in prison. It's not because of the staff, the people who

7 work there, because they are very sensible, they carry out their duties as

8 they should, and they make every effort to assist us. I wish to emphasise

9 that I also went to see the doctor, and I must say that I have never been

10 treated better than by those doctors. But also during the past year, I

11 changed my environment three times in prison, which has quite an effect on

12 any person who is trying to find his way in a new environment. But I

13 assume that that is what the Detention Unit does. Since you said

14 everything that you had to say about the trial commencement date, I wish

15 to point out that I came here to defend myself against all the falsehoods

16 about me that were referred to in the indictment. The truth should come

17 out, but it's been a long wait. So I would kindly ask you to start with a

18 trial as soon as possible so that I could speak in my defence and refute

19 these falsehoods. I would like the truth to come out as soon as possible.

20 Thank you.

21 JUDGE AGIUS: Okay. I thank you, Mr. Sljivancanin, and I will

22 take your words into account and try and do my best.

23 Any further comments, matter, issues? I see none, or I hear none,

24 which means that I can now bring this Status Conference to an end. My

25 apologies and my thanks at the same time to the interpreters and technical

Page 246

1 staff. We have been here a full -- we have exceeded our time. My

2 apologies. At the same time, I thank you and I commend you to your

3 superiors for being so cooperative.

4 The next Status Conference will be convened according to the

5 Rules, that is, within 120 days from today. I thank you all, and I

6 declare this Status Conference closed now.

7 --- Whereupon the Status Conference adjourned at

8 3.55 p.m.