Tribunal Criminal Tribunal for the Former Yugoslavia

Page 1

1 Thursday, 10 November 2005

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.36 p.m.

6 JUDGE AGIUS: So, Mr. Registrar, good afternoon to you. Could you

7 please call the case.

8 THE REGISTRAR: Good afternoon, Your Honour. This is case number

9 IT-05-88-PT, the Prosecutor versus Vujadin Popovic, Ljubisa Beara, Drago

10 Nikolic, Ljubomir Borovcanin, Zdravko Tolimir, Radivoje Miletic, Milan

11 Gvero, Vinko Pandurevic, and Milorad Trbic.

12 JUDGE AGIUS: I thank you.

13 Let's proceed with confirmation that all the accused present are

14 receiving interpretation in their own language.

15 For the record, I point out that two of the accused, namely

16 Radivoje Miletic and Milan Gvero, are currently on provisional release and

17 are not present here today in the courtroom.

18 I'll start with Accused Vujadin Popovic. Mr. Popovic, can you

19 follow the proceedings in your own language?

20 THE ACCUSED POPOVIC: [Interpretation] I have no interpretation.

21 JUDGE AGIUS: So make sure that it is on the right channel,

22 please. What I want to know is: Are you receiving interpretation now?

23 THE ACCUSED POPOVIC: [Interpretation] No. I can hear it now.

24 JUDGE AGIUS: You can receive interpretation now?

25 THE ACCUSED POPOVIC: [Interpretation] Yes.

Page 2


2 So I want to make sure again that you are receiving interpretation

3 in your own language.

4 THE ACCUSED POPOVIC: [Interpretation] Yes.

5 JUDGE AGIUS: And what I am going to tell you now will apply to

6 all the other accused. I will not repeat this advice. If at any time

7 during the proceedings reception of interpretation is faulty or the sound

8 level is not adequate, please draw my attention straight away so we will

9 address the matter and rectify it. Okay.

10 THE ACCUSED POPOVIC: [Interpretation] All right.

11 JUDGE AGIUS: I thank you, Mr. Popovic. You may sit down.

12 Mr. Ljubisa Beara.

13 THE ACCUSED BEARA: [Interpretation] I can hear it, Your Honour.

14 JUDGE AGIUS: Yes. All right, you are receiving interpretation in

15 your own language. Okay. Thank you.

16 Drago Nikolic.

17 THE INTERPRETER: Microphone, please.

18 JUDGE AGIUS: Yes, could you repeat, please.

19 THE ACCUSED NIKOLIC: [Interpretation] I can hear interpretation in

20 my own language.

21 JUDGE AGIUS: Thank you.

22 Ljubomir Borovcanin.

23 THE ACCUSED BOROVCANIN: [Interpretation] Everything is okay with

24 interpretation, Your Honour.

25 JUDGE AGIUS: Okay. Thank you.

Page 3

1 Vinko Pandurevic.

2 THE INTERPRETER: Microphone, please.

3 JUDGE AGIUS: Microphone.

4 THE ACCUSED PANDUREVIC: [Interpretation] I can hear the

5 interpreters, Your Honour.


7 And Mr. Trbic.

8 THE ACCUSED TRBIC: [Interpretation] Your Honour, I receive

9 interpretation.

10 JUDGE AGIUS: I thank you.

11 As I said, if there are any problems with interpretation, please

12 draw my attention straight away.

13 Appearances for the Prosecution.

14 MR. McCLOSKEY: Peter McCloskey, Your Honour. Good afternoon.

15 JUDGE AGIUS: Good afternoon to you.

16 MR. McCLOSKEY: With me today is Janet Stewart, our case manager,

17 and Nicole Janisiewicz, and Lada Soljan behind me.

18 JUDGE AGIUS: I thank you and good afternoon to you and your team.

19 Now let's go slowly through the Defence. First for Vujadin

20 Popovic.

21 MR. ZIVANOVIC: Good afternoon, Your Honour. I am Zoran

22 Zivanovic, and I am representing here Mr. Vujadin Popovic.

23 JUDGE AGIUS: I thank you, Mr. Zivanovic, and good afternoon to

24 you.

25 Mr. Ljubisa Beara.

Page 4

1 MR. OSTOJIC: Good afternoon, Your Honour, my name is John

2 Ostojic, and I am here on behalf of Mr. Ljubisa Beara.

3 JUDGE AGIUS: I thank you, Mr. Ostojic, and good afternoon to you.

4 Drago Nikolic.

5 MS. NIKOLIC: [Interpretation] Good afternoon, Your Honour. My

6 name is Jelena Nikolic, and together with Stephane Bourgon, I appear for

7 Mr. Drago Nikolic.

8 JUDGE AGIUS: I thank you, Ms. Nikolic, and good afternoon to you

9 and Mr. Bourgon.

10 For Ljubomir Borovcanin.

11 MR. STOJANOVIC: Good afternoon, Your Honour, my name is Miodrag

12 Stojanovic, co-counsel for Ljubomir Borovcanin.

13 JUDGE AGIUS: I thank you, Mr. Stojanovic, and good afternoon to

14 you.

15 For Radivoje Miletic.

16 MRS. FAVEAU-IVANOVIC: [Interpretation] Good afternoon, President.

17 I am Natacha Faveau-Ivanovic, and I do represent the interests of Radivoje

18 Miletic.

19 JUDGE AGIUS: Merci, Madam Faveau, and good afternoon to you.

20 Appearances for Milan Gvero.

21 MR. KRGOVIC: Good afternoon, Your Honour. I am Dragan Krgovic,

22 on behalf of defence of Milan Gvero.

23 JUDGE AGIUS: I thank you, Mr. Krgovic, and good afternoon to you.

24 Appearances for Vinko Pandurevic.

25 MR. SARAPA: [Interpretation] Good afternoon, Your Honour. Djordje

Page 5

1 Sarapa, counsel for Vinko Pandurevic.

2 JUDGE AGIUS: I thank you, Mr. Sarapa, and I hope that whoever

3 will be dealing with the reconstruction of this courtroom will remember

4 that between us two there is a solid concrete column. I couldn't notice

5 your presence until I heard your voice.

6 Finally for Mr. Trbic.

7 MS. ROHAN: Good afternoon, Your Honour, Colleen Rohan for Milorad

8 Trbic, and also with me today is Ms. Helena Kaker, who is my case manager.

9 JUDGE AGIUS: I thank you, Madam, and good afternoon to you too.

10 So let me start by introducing this first Status Conference in

11 this new case, as I would prefer to call it now, after the joinder

12 decision by Trial Chamber III. Before the joinder decision came out, was

13 pronounced, there were four separate -- yes, I notice Madam Faveau.

14 MRS. FAVEAU-IVANOVIC: [Interpretation] Sorry, Mr. President, for

15 interrupting you, but before we start this Status Conference I wish to say

16 that I participate here because I do not want to prevent the trial. But

17 the fact that I'm here does not say anything as to the appeal that I lodge

18 as to the joinder of cases because I'm really firmly against the joinder.

19 JUDGE AGIUS: Yes. I thank you, Madam Faveau, and I can assure

20 you that these proceedings are being conducted, of course, without

21 prejudice to the appeal that is pending before the Appeals Chamber on

22 the -- against the -- from the joinder decision. And it is anticipated,

23 from what I hear, that the decision by the Appeals Chamber will be

24 forthcoming pretty soon. However, of course, I do confirm to you that

25 this is of course without prejudice, and your presence here of course will

Page 6

1 not prejudice the appeal that you have filed.

2 So before the joinder decision, these -- there were separate cases

3 and I will just, for the record, indicate when the last Status Conference

4 in each of these cases was held. In the against Vujadin Popovic, the last

5 Status Conference was on the 22nd of July of this year, of course. As

6 regards Ljubisa Beara, the last status was on the 15th of June. As

7 regards Accused Drago Nikolic, Ljubomir Borovcanin, Vinko Pandurevic, and

8 Milorad Trbic, the last Status Conference was on the 24th of August. And

9 as regards Accused Miletic and Gvero, the last Status Conference was on

10 the 28th of June.

11 Then as you know, on the 22nd of September, 2005 the -- Trial

12 Chamber III handed down its decision joining the cases. There was an

13 order by the President assigning this new case to Trial Chamber II, of

14 which I am Presiding Judge. And I appointed myself as Pre-Trial Judge, at

15 least for the time being. That is the position. Of course there is an

16 appeal pending from the Trial Chamber III's decision on joinder that you

17 are aware of.

18 So the new case has been given a number and it is IT-05-88-PT, and

19 this is of course the first Status Conference. You all know, but for the

20 sake of publicity I just repeat that pursuant to Rule 65 bis the Trial

21 Chamber or the Pre-Trial Judge, as the case may be, is bound to hold a

22 Status Conference within -- with intervals of not more than 120 days

23 between. The purpose of the Status Conference is, first, to organise

24 exchanges between the parties with a view to ensuring an expeditious

25 preparation for trial; secondly, and significantly so, to give an

Page 7

1 opportunity to the accused to come face-to-face with the Pre-Trial Judge

2 and to raise any issues that they may have in relation to their mental,

3 physical condition as well as their condition of detention.

4 Some time back I gave instructions to Mr. Von Hebel to convene a

5 Status Conference pursuant to Rule 65 ter -- prior to this Status

6 Conference to convene a meeting pursuant to Rule 65 ter, inviting you all

7 to attend to prepare for this Status Conference. And I know that this was

8 held on Wednesday in the morning. And I have the report from

9 Mr. Von Hebel as to the proceedings during that 65 ter meeting.

10 Then there was one outstanding motion pending. It has been

11 decided in the meantime and relates to Mr. Nikolic. I have now decided

12 the matter, and Mr. Nikolic's motion for provisional release, his request,

13 has been turned down.

14 The first matter that I should like to raise during -- or to deal

15 with during this Status Conference is the matter of -- relating to

16 disclosure. And I propose to take disclosure matters one by one. And as

17 I go along, I will tell you what has been reported to me by Mr. Von Hebel.

18 If any one of you would like to register some disagreement with what has

19 been reported to me or add something in addition to what has been reported

20 to me, I will do the rounds and I will ask you one by one.

21 The first type of disclosure is that contemplated under

22 Rule 66(A)(i). And basically this is disclosure of copies of supporting

23 material which accompanied the indictment when confirmation was sought, as

24 well as all prior statements obtained by the Prosecutor from the accused.

25 The situation of course changed with the coming into existence of a new

Page 8

1 indictment reflecting the joinder. So I would like to make sure that --

2 what the situation is. In other words, I take it that each accused now

3 has a right to be provided, pursuant to Rule 66(A)(i), with all the

4 supporting material relating to the other now co-accused that may not have

5 been available or wouldn't have been available before the joinder came

6 into issue. This is a matter that of course the Prosecution needs to

7 address.

8 What I am informed by my SLO is that during the 65 ter meeting the

9 Prosecutor undertook to assess whether this has been done and also in

10 providing the Defence team with a clear index of the complete supporting

11 material. So more or less now -- that was yesterday. Now it's Thursday.

12 Are you in a position to update the Chamber on this? Mr. McCloskey.

13 MR. McCLOSKEY: Yes, Your Honour. We have provided the index that

14 we said we would provide that shows all the various supporting material.

15 Whether or not everyone has all that supporting material is -- we believe

16 they do, but the index will allow them to check and we'll plug any gaps

17 that may be there.

18 JUDGE AGIUS: All right.

19 MR. McCLOSKEY: There was some additional material with the

20 amended indictment. That material has -- was provided a while back as

21 well. So there's -- that wasn't held back, as sometimes happens.

22 JUDGE AGIUS: All right. Thank you.

23 Out -- any of the Defence teams would like to address this matter?

24 Yes, Mr. Zivanovic.

25 MR. ZIVANOVIC: I would like to address a problem the Defence of

Page 9

1 Vujadin Popovic met with the disclosing of this material.

2 I have received all material accompanying the amended indictment,

3 and among this material are the trial transcripts from the other

4 Srebrenica-related cases, from Jokic and Blagojevic and from Krstic.

5 Among these material is not translated into the English -- into the

6 language the accused can understand. So we made the agreement with the

7 registrar and the Prosecution to have this material on ten CDs, and it was

8 given to me in August but I could not give it to my client and to give him

9 necessary equipment because the Detention Unit did not permit it. So my

10 client has no means to listen to this material. And it is the obligation

11 to obtain him the availability of this material in the language he

12 understands.

13 JUDGE AGIUS: What I didn't understand, Mr. Zivanovic, is the

14 objection on the part of the Detention Unit. What did the Detention Unit

15 not permit?

16 MR. ZIVANOVIC: To have CDs received from the Prosecution and to

17 have the necessary equipment, this is laptop, obtained from me in consult

18 with the registrar.

19 JUDGE AGIUS: In other words, you wanted to provide your client

20 with a laptop.


22 JUDGE AGIUS: And the Detention Unit did not allow it?

23 MR. ZIVANOVIC: Yeah, that's correct.

24 JUDGE AGIUS: In other words, you didn't ask the Detention Unit to

25 provide your client with a laptop? You wanted to provide your client with

Page 10

1 a laptop yourself?

2 MR. ZIVANOVIC: Yes, yes.

3 JUDGE AGIUS: All right.

4 MR. ZIVANOVIC: It was by advice of the registrar.

5 JUDGE AGIUS: Yeah, yeah, it has to be like that. There's no -- I

6 think you had the right advice from the registrar to start with.

7 The question is -- I will need to find out about this because -- I

8 mean, you've taken me by surprise on this. I mean, I wouldn't -- I

9 wouldn't know exactly why the Detention Unit authorities denied

10 permission.

11 MR. ZIVANOVIC: I was informed that the Detention Unit has not

12 personnel to check the -- some security matters regarding the ten CDs and

13 computer. And it -- we lost about two months waiting for the checking

14 and ...

15 JUDGE AGIUS: Yeah, but this is a situation -- this is a

16 situation -- I understand, of course, the security concerns of the

17 authorities of the Detention Unit, and the last thing I would do is try

18 and interfere in areas which are not of my concern. But what I suggest is

19 done is that, registrar, that you copy this part of the transcript --

20 MR. ZIVANOVIC: Not just the copy, but it is necessary to

21 translate --

22 JUDGE AGIUS: Copy this part of the transcript and have it

23 communicated to the registrar and to the commandant of the Detention Unit

24 with a specific request from the Trial Chamber to come forward within a

25 week with an explanation of the problems involved and concrete suggestions

Page 11

1 as to how this matter will be solved without delaying further the progress

2 of this case. This case must start at the -- this case must start at the

3 earliest opportunity, and I will not allow unnecessary delays when these

4 can be avoided.

5 I would also like to emphasise, particularly to the commandant of

6 the Detention Unit, the right of the accused pursuant to Rule 66(A)(i) to

7 have the -- copies of the supporting material in a language that he

8 understands.

9 At the same time, I'm making it clear, Mr. McCloskey, that if this

10 matter cannot be solved in the manner suggested by Mr. Zivanovic if, in

11 other words, there are security concerns from the commander -- commandant

12 of the Detention Unit which will not make it possible for the accused to

13 have laptop plus these CDs, then I will have to come back to you and

14 ensure that the material is handed over to the Defence in hard copies.

15 MR. McCLOSKEY: Your Honour, my guess is this is a communication

16 issue of some sort.

17 JUDGE AGIUS: I don't know.

18 MR. McCLOSKEY: Because the jail has always allowed this in the

19 past, and my guess is many of co-accused are able to do this. So dealing

20 with jails is sometimes tricky and whenever any help we can give, we will.

21 But just, I want to clarify, there's a little mix-up on what

22 material he's talking about. The supporting material contains some

23 transcripts from previous trials. And as you know, they only come out in

24 English.

25 JUDGE AGIUS: In English, yeah.

Page 12

1 MR. McCLOSKEY: We translated or transcribed those few portions of

2 the transcripts into B/C/S. We could have provided audiotapes, but we

3 didn't. They were small enough so we gave them into B/C/S. And so right

4 now they have those material.

5 What I believe counsel is talking about is the additional material

6 we've been providing the records of the previous two trials. And, as you

7 might imagine, that's very voluminous material. So those are the tapes

8 that he wants naturally his client to listen to. And we agree with that,

9 and any help we can do to get the machines going, we will.

10 JUDGE AGIUS: But in any case, I think this matter should be taken

11 up and dealt with with the utmost celerity.

12 Yes, Mr. Bourgon.

13 MR. BOURGON: Good afternoon, Your Honour. With your permission,

14 I would like to address the Court on behalf of all of the accused present

15 and counsel simply to inform the court that yesterday we had a meeting

16 with an associate legal officer from the registry from the OLAD section,

17 Mr. Sam Lowery. At this time I would like to say thank you to Mr. Sam

18 Lowery from the OLAD section for this initiative which has allowed us to

19 arrange and to solve many outstanding issues.

20 At this time -- at that time - sorry - during that meeting he did

21 inform us that there is presently a project taking place within the

22 registry to give every single accused in the Detention Unit a desktop

23 computer. However, the details of this project are not known. The worry

24 that we have at this time is that the lead time to procure a desktop

25 computer and to give that computer to each of the accused, we are worried

Page 13

1 that this could take a very long time when we need to work now.


3 MR. BOURGON: For Mr. Nikolic, we have given a laptop computer to

4 the Detention Unit. This laptop is waiting, is not outside of the jail

5 and is not given to Nikolic, it is just sitting there waiting for this

6 project to take place. And the good thing is that Mr. Lorry on behalf of

7 OLAD has promised to get back to us in a week, at least to explain what

8 the project is, because we get a different interpretations of the project

9 from the accused and from rumours flying around. And he said he would

10 come back to us and give us some information.

11 Thank you, Your Honour.

12 JUDGE AGIUS: I thank you, Mr. Bourgon, for the information. I'm

13 happy to note the cooperation of Mr. Sam Lowery from OLAD, which I'm sure,

14 I agree with you, will enhance the chances of these -- this case

15 proceeding in -- more smoothly.

16 How long have you handed this laptop to the --

17 MR. BOURGON: One month, Your Honour.

18 JUDGE AGIUS: That's a long time. I mean -- the thing is, I'm

19 caught between two stools here basically. Because when it comes to

20 security, don't expect me at any time to interfere with the discretion

21 that Mr. McFadden has in overseeing and managing the Detention Unit. He

22 has got a very difficult job that requires particular and significant

23 security measures and control in place, and he knows best about these

24 things.

25 On the other hand, if a computer needs to be examined properly

Page 14

1 before it is made available to your client and in that -- as far as that

2 goes, I am not going to interfere. On the other hand, I mean, I want to

3 make sure this is done within a reasonable time, because if it's not then

4 we have an unnecessary protraction, prolongation of the proceedings. It's

5 one -- one month lost. I'm not saying wasted, because I have no right to

6 say wasted, but it is one month lost.

7 So if each and every one of you will do the same thing, and each

8 time there is a month taken, it will be nine months before we clear this

9 whole thing up, before we even start proceeding as we should towards the

10 initiation, the beginning of the trial. So I am sure that I can count on

11 your cooperation, particularly since I know quite a few of you and have

12 worked with you in the past, so I will do my best, and please try to help

13 me, both Prosecution and Defence.

14 MR. BOURGON: Thank you, Your Honour.

15 JUDGE AGIUS: Thank you.

16 In the meantime, you are to -- Mr. -- Ram, you are to make sure

17 this -- all this part is sent to Mr. McFadden and to Mr. Holthuis.

18 THE REGISTRAR: Your Honour, that will be forwarded at this point.

19 JUDGE AGIUS: And if necessary, I will go into this matter further

20 if I am not satisfied with progress, sufficient progress, I will try and,

21 between now and the next Status Conference, I'll try to take matters in my

22 own hand and deal directly with the registrar and with the commander of

23 the Detention Unit to see which way would be best to speed up these

24 procedures without, of course, in any way impeding or prejudicing or

25 putting in harm's way the security of the Detention Unit. All right?

Page 15

1 Thank you.

2 So, Rule 66(A)(ii). Again, during the 65 ter meeting I'm informed

3 by Mr. Von Hebel the Prosecution stated that as regards accused Beara and

4 Popovic, all the disclosure had already taken place and all the witness

5 statements from Krstic and Blagojevic cases had been disclosed. And in

6 addition, the Prosecution made it known that it still needed to contact a

7 few more potential witnesses, but that it would endeavour to have its

8 witness list along with relevant witness statements disclosed at the

9 earliest possible opportunity. Hopefully before the Christmas recess.

10 Now, is this more or less the position as you explained it to --

11 during the 65 ter meeting?

12 MR. McCLOSKEY: Yes, Your Honour.

13 JUDGE AGIUS: And you confirm it?

14 MR. McCLOSKEY: Yes.

15 JUDGE AGIUS: Thank you.

16 And are there any comments on the part of any of the Defence

17 counsel?

18 MR. ZIVANOVIC: Your Honour.

19 JUDGE AGIUS: Mr. Zivanovic.

20 MR. ZIVANOVIC: I had some remarks about it. I got this material

21 on -- in August. I got the list of exhibits and the witnesses the

22 Prosecution intends to call to the trial. And after thoroughly inspecting

23 of the EDS, I didn't get the material with an index, with a list. But I

24 was directed to the EDS. After thoroughly inspecting of the EDS, I found

25 that more than half of these documents are useless. Some of them are not

Page 16

1 posted at all; some of them are invisible, some of them have not any ERN

2 number or any other indicator for searching.

3 I informed about it, the registrar and this Trial Chamber and the

4 Prosecution, with my two letters, and indicating exact number of the

5 documents that I could not find it. And it is a very great obstacle for

6 the preparation of defence right now at the moment.

7 Thank you.

8 JUDGE AGIUS: Yes. I thank you, Mr. Zivanovic.

9 Mr. McCloskey, do you wish to comment on this?

10 MR. McCLOSKEY: I -- the EDS is by no means perfect, but I'm sure

11 that it's not over half are useless. And there are tricks to it. Some of

12 the Defence counsel have been working very closely with us and have

13 learned, through Ms. Stewart, how to do it and, you know, we want to do

14 that with all if they're having trouble.

15 We have had a chance to go over Mr. Zivanovic's letter and have

16 found some problems and have fixed many of them. So I think we are doing

17 that process, and it should be much better. And so if he could try again

18 and keep in touch with us, we'll work our hardest to make sure that that

19 material is available, because if it isn't we all know that the system

20 will collapse and the trial will collapse.


22 Mr. Zivanovic, what I recommend is that you take up Mr. McCloskey

23 on his suggestion, and any problems that you encounter, I suggest that you

24 be specific and point things out to the Prosecution. This is certainly a

25 matter that you need to explore and bring to an end by constantly

Page 17

1 referring to the Prosecutor the problems that you encounter.

2 MR. ZIVANOVIC: I'll do it, Your Honour. Thank you.

3 JUDGE AGIUS: Thank you.

4 Rule 68 material --

5 MR. OSTOJIC: Excuse me, Your Honour.

6 JUDGE AGIUS: Yes, Mr. Ostojic.

7 MR. OSTOJIC: Thank you, very much. I'm here on behalf of

8 Mr. Beara. I thought you were going to progressively ask each of us. I

9 do have a couple of comments, if I may.

10 JUDGE AGIUS: Certainly.

11 Well, I had mentioned earlier if any one of you would like to

12 address this issue, to please make it known.

13 MR. OSTOJIC: Thank you, Your Honour. And I don't like to go

14 backwards but I would like to address both 66(A)(i) and 66(A)(ii).

15 My concern is not that perhaps all of us are not as computer

16 literate as the Prosecution and its massive staff. We would request that

17 the Krstic and Blagojevic/Jokic material be translated in full and be

18 given to the accused, specifically my client, so that he can go over it.

19 And what really brings us to a concern, since August, when the 66(A)(ii)

20 material was provided and the index, it reveals that most of those

21 witnesses that did testify in those matters will be called in the matter

22 before us. In that case, I think it's enormously important to have that

23 material to our client in the language in which he understands. So I

24 would request that it not just be done in audio form, but also a hard

25 copy.

Page 18

1 Second point I would like to make is that which is in connection

2 with the surveillance and the intercept tapes. 66(A)(i) specifically says

3 that all prior statements. We don't know if we received all prior

4 statements. The only way we can be sure that we received all the

5 intercepts and surveillance tapes that the Prosecution may allege they

6 have on behalf of Beara is an affirmative statement from the Prosecution,

7 that is, that they state affirmatively as of this date we've tendered over

8 to you all the tapes and records we have which indicate your client's

9 voice or some other recording that he gave a certain statement. It's a

10 provision that I think they should have done earlier, and we respectfully

11 request that they affirmatively do that as soon as possible.

12 JUDGE AGIUS: Thank you, Mr. Ostojic.

13 Mr. McCloskey, any comments on your part?

14 MR. McCLOSKEY: Yes.

15 Regarding point one, I think Mr. Ostojic probably means transcribe

16 the tapes. I don't think he would want to translate the English

17 transcripts into B/C/S. You would miss a lot of what was actually said.

18 I think what he's asking for is someone to listen to the tapes and

19 transcribe the actual B/C/S. You could translate the English -- someone

20 could translate all the English. That's a massive job in itself, but of

21 course there would always be something lost. I don't know which one he

22 wants, but there is a subtle difference there.

23 That, of course, as you know would break the bank here. It's an

24 impossible task, and so we have provided the audiotapes, they're on CDs,

25 actually. Perhaps that -- and that's such a significant issue, perhaps a

Page 19

1 motion with legal authority might be a better way to handle it, as opposed

2 to here. I'm fine either way, if you would like us to address that.

3 I didn't quite understand the intercept issue. I don't --

4 JUDGE AGIUS: Well, what he -- if I understood Mr. Ostojic well,

5 he wants confirmation from you that you have disclosed all the previous

6 statements, previous intercepts, of ...

7 MR. McCLOSKEY: On the -- the legal issue related to statements,

8 we do not believe that under law intercepts are statements. Statements,

9 it's my recollection, are generally judicial statements of some sort.

10 These are statements that were made during wartime that were captured by

11 enemy listeners. So we don't believe that this Rule 66 really is involved

12 in this request.

13 However, we do want everyone, including Mr. Ostojic, to have all

14 this material, and I can standby whatever I said before. We have

15 endeavoured to provide all that material to him, and if he thinks there's

16 something out there that we haven't, we can continue to work on that and

17 make sure he does have it.

18 But to make clear, the vast majority of this material is in

19 written form. There are some audiotapes, but most of those tapes were

20 used over and over again and then subsequently destroyed in another time

21 period. So these intercepts are handwritten notes, transcriptions of

22 someone listening to the original tapes.

23 We do have some tapes for other periods of time, and in some cases

24 Defence counsel in the past have asked to listen to those and that's

25 always possible, but we have endeavoured to provide him the intercepts

Page 20

1 that we are using as exhibits.

2 Now, there is a huge collection of other intercepts, and it's our

3 intention to get that to all the Defence as soon as we can. And if -- if

4 that's something in particular Mr. Ostojic would want, we'll put that top

5 on the list for him. And we'll try to -- we'll try to do that with all

6 Defence counsel because there's a lot of material out there, and if we can

7 meet people's priorities, we'll try to. Otherwise, we're just plodding

8 along, trying to get this important material out to everyone.

9 JUDGE AGIUS: Yes, Mr. Ostojic.

10 Thank you, Mr. McCloskey.

11 MR. OSTOJIC: Thank you, Your Honour. I know this is a Status

12 Conference, but I have to remind the Court that in the Krstic specifically

13 the Prosecution withheld statements and tapes until I believe the rebuttal

14 case, and it was a big issue with respect to -- on appeal and it was a

15 large controversy. I don't want this to happen here. If they have any

16 statements the Rule is quite clear whether Mr. McCloskey wants to use a

17 trick word or call it there's a subtlety as he did earlier, I'm not in

18 agreement with it. If he has a statement that's attributed to my client

19 by anyone regarding the facts as they're set out in the amended

20 indictment, he's required within 30 days of the initial appearance to

21 submit that to us. 30 days has hence passed. All we're asking for is for

22 him to give us an affirmative statement so that we don't have to revisit

23 the issues in Krstic or any of the other obligations that we believe the

24 Prosecution hasn't met in other cases. It's a very straightforward

25 questions, and it's a very straightforward answer: If he has tapes with

Page 21

1 Mr. Beara's purported statements on there, he is required to produce it.

2 That's my interpretation of the Rule, and I think it's relatively clear.

3 Secondly, with respect to the translation or transcription. The

4 Rule also, I think, is quite unequivocal. Anything that is used in the

5 supporting material under 66(A)(i) or (A)(ii) needs to be given to the

6 accused in a language in which they can fully understand. In the

7 pre-trial conferences and in other statements the Prosecution has said

8 that this case is entirely a copy of the Krstic, Blagojevic, Jokic case,

9 we're using the entire transcript. All of those statements, whether it

10 takes ten years to transcribe or translate, whichever word we want to use,

11 it's required in my view to be given to the accused in a language he can

12 understand so that he can assist us in defending the case and also in

13 proving his innocence.

14 JUDGE AGIUS: I thank you, Mr. Ostojic. As in the course of

15 hearing -- or listening to your submissions, basically it occurred to me

16 that you are touching upon matters that may need to be decided upon if

17 there is an ad hoc motion by the entire Trial Chamber and not just by

18 myself as Pre-Trial Judge. So I will limit myself to certain

19 considerations only within my function as Pre-Trial Judge.

20 66(A)(i) specifically refers to the disclosure of copies of

21 supporting material which accompanied the indictment. Now, in the

22 context, the present context, we're speaking of the various indictments

23 that existed before the joinder decision. So if there were four different

24 indictments, we're talking of four different indictments. And if there

25 was an indictment against Mr. Popovic, now Mr. Beara has a right to

Page 22

1 receive in a language that he understands the supporting material which

2 accompanied the indictment against Mr. Popovic, and so on and so forth. I

3 mean, I don't need to expand on this because it is a simple legal logic.

4 And then there is the new indictment. And I heard you,

5 Mr. McCloskey, that there are some new documents that relate to the new

6 indictment that have already been disclosed. If they haven't been

7 disclosed, they need to be disclosed in a language that the accused

8 understands. There's no question about that.

9 So I have not had the opportunity to examine the documents, the

10 supporting material, which accompanied the various indictments in the

11 first place, the -- pre-joinder, in other words. I don't know what

12 supporting material accompanied those indictments. So I can't confirm

13 that all the transcripts in Krstic and Blagojevic accompanied the

14 indictments in the -- the various indictments. So that's -- stands to be

15 seen. If they did not, or if only part did, then the question may arise

16 whether the rest ought to be disclosed to the various accused now in a

17 language they understand or not. I'm not going to pronounce myself on

18 that now, because if the question arises, it's a matter that needs to be

19 decided by the three Judges and not by myself alone. And of course it

20 will depend -- a decision will depend on what, according to the Rules,

21 needs to be disclosed in a language that they understand and what needn't

22 be disclosed in a language that they understand. So I keep that pending.

23 With regard to question of intercepts, whether they amount to

24 prior statements of the accused or not, again I pretty much suspect that

25 this may become a matter that if the Trial Chamber is seized with will

Page 23

1 need to be decided by the three Judges and not by myself alone as

2 Pre-Trial Judge. And that's because it will entail an interpretation of

3 the words in 66(A)(i) as well as all prior statements obtained by the

4 Prosecutor from the accused. We don't have all prior statements of the

5 accused, but we have all prior statements obtained by the Prosecutor from

6 the accused.

7 So I am going to leave this unprejudiced, Mr. Ostojic, and at any

8 time you or any of your clients, if you feel concerned or aggrieved by the

9 disclosure process under Rule 66(A)(i) or also under Rule 66(A)(ii), you

10 may, of course, address the Trial Chamber directly by a specific motion,

11 and I can assure you that my colleagues and I will give it our due

12 attention straight away without delaying. All right?

13 Rule 68 material. Now I must stand four-square with my Senior

14 Legal Officer when yesterday he told you that it's not enough that

15 disclosure takes place by handing to each one of you a mass of documents

16 telling you this is being disclosed under Rule 66 and Rule 68 without

17 distinguishing one from the other.

18 The position that I am taking as Pre-Trial Judge is that

19 disclosure of exculpatory or mitigatory material needs to be disclosed as

20 such. In other words, it -- as I have had an opportunity in other cases

21 to explain the introduction in Rule 68 of other provisions has not

22 minimised or changed in any way the onus that the Prosecution carries of

23 disclosing to the Defence, to the accused, all exculpatory material she is

24 aware of. This is the position.

25 Once you are aware of exculpatory material, immediately the

Page 24












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 25

1 obligation of disclosure is triggered and is triggered in a way in which

2 you make it clear to the Defence that these documents are being disclosed

3 as exculpatory material.

4 I'm saying this because my background -- I've been a Judge for

5 many years, but before I was a Judge, I was also a Defence counsel. So I

6 have combined both experience. And I can confirm that if you give me a

7 mass of papers and you tell me, This is being disclosed under the Rules

8 without telling me which is which, you are going to create confusion for

9 me. While if you tell me, This is being disclosed as exculpatory

10 material, that category of documents will receive my attention in a much

11 more focussed manner and probably more immediately than I would be

12 prepared to give to the rest of the documents that are disclosed under the

13 rest of the Rules.

14 So the obligation to disclose exculpatory material under

15 Rule 68(i) carries with it the corresponding right of the accused to have

16 that material disclosed to him or to her as such as exculpatory material.

17 I think I have sent my message loud and clear, and I am sure that

18 I do not doubt for a moment that I will have all the cooperation that I

19 expect from the Prosecution. I've never had problems in any of the other

20 cases from the Prosecution on this matter except for non-disclosure every

21 now and then. I'm sure that this will not happen or that any recurrence

22 would be sporadic and not prejudicial.

23 Is there any one of you that would like to address this Rule 68

24 material disclosure without repeating what I have said? And please do

25 understand that I consider this to be an ongoing process. I mean, it is a

Page 26

1 process that needs to be given a lot of momentum during the pre-trial

2 stage, but understandably it is a process also that continues afterwards

3 and during the trial as new documents come to the surface and as new

4 documents come to the knowledge of the Prosecutor.

5 Okay, I see no comments.

6 So I had listed also the matter of access of the accused to the

7 appropriate computer equipment and software. I think we can skip this,

8 having heard what Mr. Bourgon stated earlier on.

9 Now, may I just announce some bad news. The bad news -- I know

10 that you know it already, but members of the public don't, and I wasn't

11 aware of it until this morning, actually, when I had is meeting with my

12 staff. The bad news is that the indictment, the new indictment, has not

13 been translated into B/C/S as yet. This, unfortunately, I was not aware

14 of, so in my dealings with my -- and my discussions with my staff and in

15 trying to make preparations, I was working all the time on the wrong

16 assumption, the wrong assumption being that they had already been served

17 with the B/C/S version of the indictment way back in September. I was

18 wrong, obviously. I was wrong. And now I am told that there was a

19 misunderstanding. It was taken that there was no request for translation

20 into B/C/S, that now it's being taken that a request has been made and

21 that steps have already been taken to ensure that a translation of the

22 indictment is ready as soon as possible. But as soon as possible, I am

23 told, will not be any sooner than the 25th of this month, the 25th of

24 November.

25 There's nothing I can do on this. There's nothing you can do or

Page 27

1 the Prosecution can do. The section of this Tribunal that does this work

2 is already working to the limit, and I will not dare try and ask them to

3 prepare the translation earlier because I know how busy they are, and I

4 also know how dedicated to their work they are. So let's take it that

5 they will probably finish the translation by the 25th of this month.

6 It also means that automatically what I had in mind will have to

7 shift forward. That includes the preliminary motions, pleading to the

8 indictment, and so on and so forth. I have made my calculations after

9 consulting with Mr. Von Hebel, who has been extremely helpful in this, and

10 I think we need to be sensible in this and reasonable and not try to

11 squeeze more juice from -- than the lemon can give. Everyone needs his or

12 her time to consult with client and prepare for motions, et cetera. So I

13 think that the best way to move ahead is to mark the first week in January

14 after the recess, that's the week starting on the 10th or on the 9th,

15 either the 9th or the 10th, where we will have a further initial

16 appearance, we will have a further initial appearance with regard to some

17 particular accused, and we will deal with the related matters of pleas and

18 preliminary motions on that.

19 However, initially I had said that I had planned that by the end

20 of this month we would have even finished with the preliminary motions.

21 That has to be shifted. So we will leave everything until the first week

22 in January and we will talk on this matter during the next -- during the

23 sitting that we will have then. You will, of course, be communicated

24 with -- we'll communicate to you the exact date because, unfortunately, I

25 myself don't have the court schedule in Oric for that month as of yet. So

Page 28

1 I don't know if I'm sitting in the morning or I'm sitting in the

2 afternoon. So I'll need to check that first and then I come back to you

3 and give you an indication of when this will happen.

4 Again, I'm sorry this had to happen, but if I knew -- had known

5 about it, or if my Senior Legal Officer had known about it before, we

6 would have done something about it. But he just found out yesterday and I

7 just found out this morning -- or rather, I found out yesterday when he

8 rang me up, but it was too late in the day for him and for me to do

9 anything about it.

10 So let's talk, generally, on the work plan. The fact that we have

11 to delay today the proceedings that I have just referred to because of

12 this non-translation of the indictment puts me in a kind of a predicament

13 in the sense that I would be very shy and very reluctant from embarking

14 into fixing -- setting firm deadlines for filing of briefs or even

15 indicating the start of the trial because anything could happen between

16 now and when we come to the end of the proceedings following the further

17 initial appearance in January at the next Status Conference. The next

18 Status Conference will probably be called well before the 120 days, more

19 or less to coincide with this further initial appearance. I'll try to do

20 that.

21 However, I do need to point out a few things so that there is no

22 misunderstanding later on as we go ahead. I know that the Prosecution, I

23 take it, has indicated yesterday that they are pretty much advanced in

24 their preparations for this trial and that they would be in a position to

25 file a pre-trial brief when asked to without any particular problems.

Page 29

1 Am I reflecting what I have been told, Mr. McCloskey?

2 MR. McCLOSKEY: Yes, Your Honour.

3 JUDGE AGIUS: I am also told that, with the exception of counsel

4 for Borovcanin, the other Defence counsel expressed the view and that they

5 are not that much optimistic that the trial could start any time near

6 mid-next year or soon after. I would suggest for the time being that we

7 deal with this as we go ahead and we play it by the ear after that we have

8 known what substantive or procedural problems might arise after January,

9 because I think we have to take that approach.

10 On the other hand, I do wish, however, to make it clear that each

11 one of you has a responsibility to ensure that you are ready for trial,

12 for trial, at the earliest possible time. Of course the Trial Chamber

13 will be fully cooperative with you to make assure that all the

14 responsibilities on the part of the Prosecution have been met before we

15 reach that stage and that you are given what will be considered to be

16 sufficient time to prepare for the trial.

17 If you have any submissions on this, that you might alert the

18 Trial Chamber to now, you're free to go ahead.

19 Yes, Mr. Bourgon.

20 MR. BOURGON: Thank you, Your Honour.

21 I'd like to address the Court with respect to the trial date.

22 Without going back, we are fully satisfied with the positions taken by the

23 Trial Chamber in terms of the date of the trial and to play it by the ear.

24 It's perfectly fine with the Defence.

25 However, there are two issues that are of concern to us. The

Page 30

1 first one being, it is very important for the Defence to have a date.

2 JUDGE AGIUS: Yes, yes, of course.

3 MR. BOURGON: We can wait until January, but at some point in time

4 it is very important to have a date because we need to plan the

5 preparation of the case for the Defence.

6 The second thing I would like to say, Your Honour, is that our

7 position in terms of preparing this case is that we will require 12 months

8 of full-time work with a full team. The problem is we do not have the

9 resources necessary for this purpose. Two of my colleagues will address

10 the Court later on on this issue. I don't want to say what they have to

11 say, but it is very important that -- to understand that we have a lot of

12 work to do in order to be ready for this case and that this might also

13 have a significant impact on our ability to engage with the Prosecution on

14 any discussions for stipulations and/or adjudicated facts.

15 Thank you very much, Your Honour.

16 JUDGE AGIUS: Okay. I thank you. I will of course take into

17 consideration what you have said, and I also wish to make it clear that of

18 course you will have a date. The moment the Trial Chamber is in a

19 position to fix a date for trial, it will do so. It will do so after, of

20 course, consultation with Prosecution and Defence in a Status Conference.

21 Because before, of course, I can fix a date I want to make sure that

22 everything is ready, in place, and that we would be in a position to start

23 the trial on the specified day, give and take the usual fluctuations that

24 sometimes become necessary as we go along.

25 Also, of course, what I am saying is it reminds me of what Madam

Page 31

1 Faveau mentioned earlier on. Also, everything depends also on whether the

2 Appeals Chamber will confirm the joinder decision or not, because if that

3 decision is not confirmed, this will be the first and the last Status

4 Conference in this case, and we would have to revert back to the situation

5 as it obtained earlier. And then, of course -- I will of course -- you

6 will, of course -- may not see me here at all. It would actually be four

7 different cases. But we'll see that.

8 As regards how much time you require, Mr. Bourgon, in your

9 previous function here as chef de cabinet, you know that if you stand up

10 and tell me, I need a year, and Mr. Ostojic stands up and says, I need a

11 year and a half, and Madam Faveau stands up and says, And in my case, I

12 need two years, I mean, we cannot be bound by -- we will hear what you

13 have to say. We will give all due consideration to your concerns and to

14 your problems, and we will decide -- I can assure you that this is a

15 decision that I will consult my clients [sic] upon and we will decide in a

16 way which we think is fair and just. Certainly, we are ready to hear what

17 you have to state in this regard.

18 Any further submissions on this matter?

19 Madam Faveau, you want two years?

20 MRS. FAVEAU-IVANOVIC: [Interpretation] Yes, I wish to address the

21 Court, this Chamber, on an issue which I do not like to tackle because

22 this is not the right place. This is about financial resources granted to

23 the Defence counsel. This time, however, I have to speak to you about

24 this because this time really, as to the rights of the accused, you know

25 that they are entitled to a fair trial.

Page 32

1 The financial resources we have received are far from meeting our

2 basic needs, our basic material needs. The money we received for one

3 month is barely enough for our telephone costs with our clients, for

4 photocopying, for faxes we have to send to the Tribunal. Everybody, I

5 believe, is in the same situation. Once you have received this monthly

6 amount, which is for five people, it's about $12.000 as far as I'm

7 concerned, and I say that very clearly and very publicly because I'm not

8 ashamed of this. This is for five people working on the Defence team.

9 Anybody and everybody knows that a counsel, when he or she is hired, is

10 retained, cannot do anything else. You can only devote your time to one

11 case, this one. So this is $12.000 for five people to meet all costs,

12 office costs, material costs, phone, and we should live on this, on top of

13 that. We have to pay social security costs, retirement dues, you know, we

14 have to pay everything from that money. We do not have any other

15 resources when we work here if we want to do our job properly.

16 And I put this to you as a request or a motion because I was

17 informed by the registry of a very worrying situation which involves this

18 case but also the entire international justice system, because this

19 Tribunal is the predecessor of a fabulous institution which is the ICC.

20 And the ICC is endowed with a very important mission for the international

21 community as a whole. We were told there is money for the Prosecutor, the

22 Chambers, for you, but there is no money for the Defence. This is a

23 speech that I had an opportunity to hear elsewhere, where also for the

24 assembly of the parties of the ICC, and this is getting very worrying

25 because the accused here did not ask anything. They did not ask to be

Page 33

1 indicted, to be tried, to have counsel. They did not ask for anything.

2 And if the international community decides to indict people like them, if

3 the international community decides to have them here in detention, to try

4 them, then it has to also meet the obligations expressed in the Statute.

5 Articles 21(4)(b) and (d) of the Tribunal which say that accused should

6 have the needs or the costs they need for their defence, and they should

7 have also the means and facilities they need to prepare themselves to be

8 tried. So either the international community is willing and ready to do

9 that or not. If it is not willing to do, we should put an end to these

10 trials. We should send these people back home, just to stay the trials,

11 and I think my colleagues will agree with me. They should be just on

12 provisional release as long as they don't get the money. I believe that

13 my colleagues are going to specify my requests in a while.

14 JUDGE AGIUS: Yes. I thank you, Madam Faveau. I'll come back to

15 this later on.

16 Who else would like to address.

17 Yes, Mr. Ostojic.

18 MR. OSTOJIC: Thank you, Your Honour. I would like to address it.

19 And it's more of a practical problem than it is another sort of problem.

20 In this case, the Court wants to move the trial quicker, and I

21 have to repeat some of our earlier comments. If the Court wants the case

22 to go further, we as the Defence have to prepare by obtaining or retaining

23 experts, having the experts review the material. We're handicapped

24 because there's not enough resources for us to retain those experts, much

25 less to pay them to do the thorough research and to complete their review

Page 34

1 and ultimately give us a product which we can submit to the Court.

2 Interestingly the Prosecution has no less than 20 experts. The

3 OLAD rules for the Defence is that we're entitled to one with 30 hours

4 allocated to that one at a rate of anywhere from 80 to $100 an hour. I

5 can't find such an expert, for anything. There are no such experts that

6 exist under those parameters.

7 The money issue on a whole is troublesome and worrisome because it

8 not only handicaps us, it prevents us from providing the accused with a

9 fair trial. It also is a question of the principle of quality of arms.

10 We're not saying give us the same number of people that the Prosecution or

11 the Honourable Chamber has in their staff, but give us a means at least in

12 which we can adequately and properly represent our clients. We're not

13 being given that.

14 We've complained to OLAD and the registry and our complaints have

15 gone unheard. They've responded by giving us general answers saying the

16 factors you've cited do not, in our opinion, meaning the registry's

17 opinion, do not fall within the level 3 case. They have insisted that we

18 write letters and analyse the aspect of the case. We've done that.

19 They've now shared with us that they give greater weight to certain

20 factors. If they even did what they tell us orally, clearly this case

21 should be a level 3 case.

22 The Prosecution and my learned friends, as good-hearted as they

23 were, they recognise it's greater than a level 3 case. And they, when

24 asked by OLAD and the registry, they said it might be a level 8, although

25 we know that doesn't exist.

Page 35

1 It's a very serious case with some extremely complex and serious

2 allegations. In fact, any theory that this Tribunal has developed both

3 through the decisional authority and the Statute, it's mentioned in our

4 indictment for all the accused, whether it's genocide or forcible transfer

5 and deportation. All issues are presented in this case. If this case

6 isn't a level 3 case, or the greatest level, which case is and how do they

7 make that determination?

8 We're respectfully requesting and we're joining my learned

9 colleague for the Defence, all the defendants, in requesting your

10 assistance in this. And we'll also filing a joint letter to the registry,

11 and we'd like to have you help us obtain that same remedy, and we'll be

12 requesting for the Court that we be given that remedy to increase the

13 level of the case so that we can be prepared when the Court sets a firm

14 trial date. Our intention is to be prepared and to have our client have

15 its day in court. However, we're being handicapped and handcuffed by not

16 being given the resources to adequately prepare for this case.

17 Thank you, Your Honour.

18 JUDGE AGIUS: I thank you, Mr. Ostojic, and I thank you, Madam

19 Faveau.

20 Any further interventions on this issue?

21 What I suggest is the following -- yes, Madam --

22 MS. ROHAN: Rohan.

23 JUDGE AGIUS: Rohan.

24 MS. ROHAN: I have only one thing to add which I think gives some

25 context to the comments of my colleagues which I of course join in, and

Page 36

1 that is that the amount of discovery or disclosure in this case is

2 massive.

3 The EDS system has, I am told, an estimate of 600.000 pages of

4 documents. We are told the Drina Corps records are coming into that

5 system. They are themselves another 400.000 pages of documents. If we

6 had staffs of five or six people to spend full time 50 hours a week

7 reading only those documents and reviewing those documents, it would take

8 far more than a year, and that's even before we begin our investigation

9 ourselves or pursue our own investigations based on something other than

10 the documents that have been provided to us by the Prosecution.

11 So the lack of resources is a very, very real, very troublesome

12 issue, and I think potentially truly undermines the accused's right to due

13 process of law, to a fair trial, to an adequate opportunity to meet the

14 Prosecution case, particularly in a case like this. The Srebrenica

15 situation has been under investigation for ten years. The Prosecution has

16 had two prior trials involving the Srebrenica situation. None of us have

17 been in that situation ourselves with the exception of my colleague

18 Mr. Stojanovic. And it is a learning curve that is huge, that is massive

19 that we cannot catch up to in three or four months, or six months, or a

20 year without adequate resources to meet it.

21 Thank you.

22 JUDGE AGIUS: I thank you, Madam Rohan.

23 What I suggest is the following. Let me ask you a question first.

24 When you were separately charged, were the four cases granted the same

25 level? Each case was level 2?

Page 37

1 MR. OSTOJIC: I believe it was. I believe so.

2 JUDGE AGIUS: I just want to make sure of that.

3 MR. OSTOJIC: I believe it was, yes.

4 JUDGE AGIUS: Okay. All right. I know that the registrar's

5 office has got standards by which it classifies these cases and to

6 separate -- different levels. What I -- when are you going to have the

7 meeting with the registrar?

8 Yes, Madam Faveau.

9 MRS. FAVEAU-IVANOVIC: [Interpretation] Your Honour, we had this

10 meeting yesterday with the registry, and it was said pretty clearly we

11 have basically no chance, they're non-existent, as it were.

12 I do not quite understand this standard set up by the registry,

13 because if they look at the amount of pages, the amount of materials, I

14 could understand. But that's not what they do.

15 What does the registry do? They take the various legal elements

16 and they say they are complicated or not. I'm very respectful towards the

17 registry, but I don't know how they can say genocide is not complicated

18 because it has been settled already by this Tribunal. It's true but in a

19 way that does not suit me, and I'm going to fight for it -- or against it,

20 rather. So I don't think the registry are very able or qualified to make

21 such a decision.

22 JUDGE AGIUS: Let's speak a different language, Madam Faveau, and

23 I prefer to approach this matter thus.

24 Rather than putting me in a position here and now to address the

25 registrar's mode of assessment, whatever, let's bypass that completely.

Page 38

1 What I suggest is that you put your heads together and provide me with a

2 short dossier explaining what has been made available to you by the

3 registrar, and of course I will treat this document confidentially. It

4 will help me then try and intercede on your behalf with the registrar. I

5 have done it in the past without in any way pretending to intrude into

6 what is his discretion. And usually the discussions I have had with the

7 registrar have been very constructive, sometimes productive, sometimes not

8 but they have always been very constructive.

9 What I suggest is explain to me what you are provided with, how

10 the situation may have changed from what it was until September to what it

11 is now when you find yourself joined with the cases of the others. Try to

12 explain to me the insufficiency of the assistance that is being provided

13 by the registrar, what you consider to be insufficient because I don't

14 want to say that it is for the time being. I mean, I am hearing one bell

15 for the moment; I need to hear the other bell as well. And what are you

16 expecting; in other words, what would you like to see in place.

17 I said let's speak a different language because I wouldn't enter

18 now into a discussion whether this should be level 2 or level 3, whether

19 the criteria used to assess level 3 are right or wrong; whether genocide

20 should automatically go into level 3. I don't want to go into that now.

21 In another case I've had to go into that and pass on the plate back to the

22 registrar basically. We will interfere only if there is an obstruction

23 for the accused making it impossible or difficult for them to prepare for

24 their adequate defence. So that is, of course, my interest as much as it

25 is yours, and I'm sure as much as it is also the Prosecution's.

Page 39

1 So see if you can work out -- put your heads together again and,

2 as I said, present me with just one document which I will treat

3 confidentially and which I will use in my talks with the registrar when I

4 try to intercede for you. Do you agree -- if you agree to this, because

5 obviously -- I mean I cannot force you to do this?

6 Yes, Mr. Bourgon.

7 MR. BOURGON: Thank you, very much, Your Honour.

8 We absolutely are grateful to Your Honour for this proposal, and

9 without a doubt I can speak here on behalf of all my colleagues. We will

10 prepare the document that you are looking for, and we will forward it to

11 Your Honour as soon as possible.

12 However, I would like to take this opportunity to request from

13 Your Honour whether that this document be filed without prejudice to our

14 ability to file a motion based on our ability to ensure a fair trial for

15 our clients at a later date.


17 MR. BOURGON: Should that proposal --

18 JUDGE AGIUS: Certainly, Mr. Bourgon. I don't mean to ask you to

19 provide me with this document and then use it against you later on.

20 That's certainly not --

21 MR. BOURGON: Thank you very much, Your Honour.

22 JUDGE AGIUS: -- the idea. I mean, I'm offering to intercede, to

23 help, well knowing that if the registrar tells me we don't even want to

24 discuss this matter with you, I have no option but to say, okay, no

25 discussion. I mean, you will understand that he's got his own

Page 40

1 jurisdiction, his own discretion, and I will not interfere with that. But

2 he has always been very forthcoming and very amenable to discussions when

3 the length of the case is involved, where the integrity of the case is

4 involved. I mean, I've found Mr. Holthuis and his deputy, pre and

5 present, always extremely cooperative at least with me.

6 MR. BOURGON: Thank you, Your Honour.

7 May I offer a suggestion at this time is that maybe for the record

8 we could hear what the Prosecution's views are on the amount of work that

9 is required for such a case and that would help us also in preparing those

10 documents.

11 Thank you, Your Honour.


13 Are you prepared to volunteer a statement in that regard,

14 Mr. McCloskey.

15 MR. McCLOSKEY: Yes, Your Honour, it will take a great deal of

16 work.

17 JUDGE AGIUS: I appreciate that.

18 MR. McCLOSKEY: Especially from Mr. Bourgon, who works very

19 slowly, but -- pardon my poor humour, but it's an enormous amount of work.

20 And whenever asked by the registrar to assist in these proceedings, I

21 always will go tell them that and give them any detail they need. It's a

22 joint criminal enterprise case. All cases are related to each other.

23 It's a huge case.

24 And it may be helpful for the Defence to know that we have one

25 military expert. All the others referred to by Mr. Ostojic are forensic

Page 41

1 experts relating to exhumations and forensic examinations. He's a former

2 warrant officer, so take that into consideration when looking for experts.

3 There's just one fellow on the Prosecution's side.

4 Otherwise, I agree with counsel on the amount of work involved.

5 JUDGE AGIUS: Yes, I thank you.

6 The important thing, Mr. Bourgon, is -- and I'll try to be very

7 brief in this, don't put me in a position where I face the registrar with

8 an alleged fact which he can disprove immediately. I hope you have

9 understood me. So problems, by all means, provided they are real

10 problems.

11 MR. BOURGON: Thank you very much, Your Honour. We will not put

12 you in a position because we are very grateful of any assistance we can

13 get from the Trial Chamber, and we will -- it is contrary to our interest

14 to do such a thing.

15 Thank you.

16 JUDGE AGIUS: Thanks.

17 And now you were informed yesterday and I confirmed that the idea

18 is to have in place an e-court system operating when we start in trial,

19 which basically means that you will -- everyone will receive the necessary

20 training beforehand. All right. It's supposed to be a system which will

21 facilitate matters.

22 Now, before I address the accused individually to see whether they

23 have -- they wish to address me on any matter relating to their health,

24 are there any other issues that you would like to raise?

25 Mr. Ostojic?

Page 42

1 MR. OSTOJIC: I have to respond to my learned friend because it's

2 not -- I know it's early in the proceedings, Your Honour, to debate this,

3 but he's just simply not accurate when he tells the Court he has one

4 expert and that's a military expert, and we could debate the issue now or

5 we could probably debate it at a later time.

6 If you look at his list, he has 20. He identifies them. Four is

7 in-house, 16 as outside experts. Within those outside experts, he has a

8 demographer. That has nothing to do with exhumations or anything like

9 that. He has a handwriting expert. That has nothing to do with whether

10 they are exhuming bodies or victims, et cetera. So there is more. And

11 it's not as one-sided as the perhaps the Court may think at times when

12 listening to one party.

13 There are critical experts. I don't need to have experts just to

14 rebut what the Prosecution says. I may need experts to ensure that my

15 client be given a fair trial and that we can prepare an adequate defence.

16 So even if he did have one expert, and I'll accept his concession that

17 he's withdrawing the other experts, other exhumation experts, but we may

18 still need more than expert. It's not a tit for tat. We will need

19 additional experts both on the intercept and on surveillance and standards

20 which we're looking for the Court's help on, and we'll provide that to you

21 in writing.

22 I just wanted to address that. I think if I leave it un -- if

23 don't respond to it, it may seem as if I have agreed that all the other

24 experts are exhumations [sic]. They are certainly not.

25 JUDGE AGIUS: Yes, thank you, Mr. Ostojic.

Page 43

1 I think you understand that this joinder thing has changed a

2 little bit the whole situation and it's a new thing. I don't know if I am

3 the oldest one amongst you, but I am speaking from experience. When these

4 things happen it might well end up with -- sitting down with the registrar

5 on a tit-for-tat basis because money could be saved from one source and

6 re-deployed in another manner. For example, I mean, let's take experts if

7 you're mentioning experts. If you had four cases with eight, nine

8 individuals, each one having a right to have, for example, a calligraphic

9 expert appointed, same right still exists when you have a joinder. But

10 basically, you can, unless there is conflicting interest, you can indicate

11 together the documents that need to be tested. And instead of appointing

12 nine calligraphic experts, you will need to appoint just one that will

13 deal with all the documents that are being contested by all the Defence

14 teams. And the Tribunal will have saved on eight calligraphic experts,

15 probably the Trial Chamber, too, if there is disagreement with the

16 Prosecution expert. And part, if not all, of that money could be

17 re-deployed elsewhere.

18 But anyway, it's too early for me to make an assessment. Please,

19 give me the ammunition, and I will try to do the rest without any promises

20 because I have too much respect for Mr. Holthuis and Mr. Hocking to say

21 more than I am saying now. I know that they lend me their ears when I

22 speak to them. They are very cooperative, and more than that I cannot

23 say.

24 Anything -- yes, Mr. Krgovic.

25 MR. KRGOVIC: [Interpretation] Yes, Your Honour. To clarify a

Page 44

1 point. There is an order here of the 31st of October setting a deadline

2 for a response to the consolidated indictment of -- which is 30 days.

3 Bearing in mind that the accused have not received the indictment in a

4 language they understand, will the Court extend this deadline or do we

5 need to file a motion asking for an extension?

6 JUDGE AGIUS: No, I will -- Mr. Von Hebel, we will spare the

7 Defence the need to have to file a motion. We will look into that

8 ourselves, and we will file -- we will hand down an order extending that.

9 We will probably do it when I know for sure when the translation is

10 finished and the new consolidated indictment served on each of the

11 accused, and we will hand down -- so don't worry about that deadline.

12 Yes, Mr. McCloskey.

13 MR. McCLOSKEY: In discussions with registry and on this issue,

14 we're tomorrow filing just a request -- we're filing the new indictment

15 with just a request and the new number. And so you'll see that tomorrow.

16 But that's all that is, to keep the ball rolling towards translation.

17 JUDGE AGIUS: Okay. I appreciate that, Mr. McCloskey, and I thank

18 you.

19 Any further? I see none.

20 I am now addressing the six of you: Mr. Popovic, Mr. Beara,

21 Mr. Nikolic, Mr. Borovcanin, Pandurevic, Trbic. Would any one of you like

22 to address me on your state of detention or on your physical or mental

23 health?

24 I'll start with you, Mr. Popovic.

25 THE ACCUSED POPOVIC: [Interpretation] No, Your Honour. At

Page 45

1 present, I have nothing to say here.

2 JUDGE AGIUS: I thank you.

3 Mr. Beara.

4 THE INTERPRETER: Microphone, please, for Mr. Beara.

5 JUDGE AGIUS: Microphone needs to be switched on.

6 THE ACCUSED BEARA: [Interpretation] Everything is all right, Your

7 Honour. Thank you. I have no problems.

8 JUDGE AGIUS: Mr. Nikolic.

9 THE ACCUSED NIKOLIC: [Interpretation] Your Honour, I have no

10 observations to make.

11 JUDGE AGIUS: Mr. Borovcanin.

12 THE ACCUSED BOROVCANIN: [Interpretation] Your Honour, I have no

13 problems. Everything is in good order.

14 JUDGE AGIUS: Mr. Pandurevic.

15 THE ACCUSED PANDUREVIC: [Interpretation] Your Honour, everything

16 is all right. There are no problems.

17 JUDGE AGIUS: I thank you.

18 And Mr. Trbic.

19 THE ACCUSED TRBIC: [Interpretation] Thank you for your question,

20 Your Honour. I have nothing to say.

21 JUDGE AGIUS: I thank you all.

22 So I'm going to adjourn this Status Conference. Before I do,

23 there is one last point that was made to me by my Senior Legal Officer

24 that you mentioned yesterday that you might file a motion to take the

25 positions on a number of witnesses pursuant to Rule 71. Do you think you

Page 46

1 will be doing that or not?

2 MR. McCLOSKEY: I think so. I think it's -- I didn't hear any

3 major objections. Maybe I'll hear them on paper, but I think it -- I

4 would be -- safer to do it after the Appellate Chamber decides.


6 MR. McCLOSKEY: But, yes, right now I think it's a good idea if --

7 especially if I don't hear any strong objections, but ... looking to

8 try to save some trial time.

9 JUDGE AGIUS: Okay. Thank you. We'll deal with this if and when

10 it arises.

11 So I'm going to adjourn the Status Conference. There will be

12 another Status Conference, as I mentioned, prior to the 120 days, for

13 sure, and I'll try to make it coincide with the next stage in the

14 pre-trial proceedings after that the consolidated indictment has been

15 served in the Serbian -- Serbo-Croat language on your clients.

16 Thank you.

17 --- Whereupon the Status Conference

18 adjourned at 4.12 p.m.