1 Monday, 05 November 2001

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 [The accused Milan Simic not present]

6 --- Upon commencing at 9.38 a.m.

7 JUDGE MUMBA: Good morning. Please call the case.

8 THE REGISTRAR: Good morning, Your Honours. Case number

9 IT-95-9-T, the Prosecutor versus Blagoje Simic, Milan Simic, Miroslav

10 Tadic, and Simo Zaric.

11 JUDGE MUMBA: The Trial Chamber has decided that we are going to a

12 Status Conference because we have problems with the trial proceedings, to

13 proceed right away. We can see that Mr. Milan Simic is not here. There

14 are problems with his transportation and the services that are required

15 for him to be brought to the Trial Chamber.

16 The Trial Chamber wanted to find out from the Defence counsel for

17 Mr. Milan Simic -- we had decided on Friday that we would sit late if the

18 nurse and the other services required for him were available for the

19 witnesses that discuss his involvement. We wanted to find out from them

20 whether, on cross-examination, if it is not possible to have him in the

21 courtroom, if he stays at the detention centre with the video-like

22 facilities being provided for him to follow the proceedings while at the

23 detention centre, whether that would be acceptable.

24 MS. BAEN: Well, Your Honour, we are really happy to discuss

25 this. As a matter of fact, we have been trying to work something out with

1 the Registry the last couple of weeks to try to move things along and come

2 up with some solution to make this trial go by faster. We are happy to

3 have our client sit in the jail every day, and we can sit here in trial as

4 many hours as the Trial Chamber sees fit, but only -- the defendant only

5 wants to absent himself from this trial if there are witnesses that are

6 not dealing with his case. In other words, if the Prosecution will

7 stipulate that on those days where he's sitting in the jail, that those

8 witnesses will not be used as evidence against him, then that is great

9 with us and we --

10 JUDGE MUMBA: No, no, no, no, no. That is a bit not clear, when

11 you say "those witnesses will not be used as evidence against him."

12 That's different from having a witness discussing direct involvement of

13 the accused.

14 MS. BAEN: I understand, but, Your Honour --

15 JUDGE MUMBA: Because, if you see, the whole indictment, there are

16 specific charges against Mr. Milan Simic. Now, other witnesses may be

17 discussing other things other than the direct involvement of Mr. Milan

18 Simic.

19 MS. BAEN: I understand, Your Honour.

20 JUDGE MUMBA: That's the difference.

21 MS. BAEN: I understand. But not only the United States and

22 Serbia and other European countries, the most important thing is that the

23 defendant be present for his trial, and the defendant cannot be tried in

24 absentia unless he volunteers. It's the defendant's right to make the

25 decision.

1 JUDGE MUMBA: Are you saying that if arrangements were made, like

2 we do teleconferences, he's in the detention centre, he's following the

3 proceedings, every facility is there for him to follow the proceedings,

4 save for the physical presence in the courtroom --

5 MS. BAEN: Your Honour, I think that's what I'm saying. I'm not

6 exactly sure I understand what you're saying. What our client has said -

7 and we've discussed this with him - is that he is happy to sit in the

8 jail - in fact, he wants to sit in the jail - as long as he can be here

9 for the witnesses who are going to be used against him, to prove the cases

10 against him. But as far as these other witnesses -- he wants to be here

11 in the courtroom to see the witness, to judge the credibility, just like

12 the Trial Chamber, if those witnesses are going to be used as evidence

13 against him. So this is what we've been discussing for two weeks --

14 JUDGE MUMBA: Yes, because you have to be remember that we do have

15 videolink proceedings in this Tribunal --

16 MS. BAEN: Your Honour, and I know that --

17 JUDGE MUMBA: -- and the issues of credibility are just as well

18 handled by the Trial Chamber and the parties --

19 MS. BAEN: Your Honour --

20 JUDGE MUMBA: -- because you are able to see --

21 MS. BAEN: And I'm aware that videolinks are used here, but the

22 videolinks have been used for witnesses, not for the defendants. The

23 defendant is the one who has the absolute right to be present for his

24 trial, unless he says, "No, it's okay, I don't want to be there."

25 Otherwise what we could do is just videotape all the witnesses, videotape

1 their cross, and just have a --

2 JUDGE MUMBA: No, no, no.

3 MS. BAEN: -- give the videotapes to the Appeals Chamber, have a

4 trial de novo there.

5 JUDGE MUMBA: No, no, no, no. Let's be sensible. Let's be

6 practical. For the witnesses directly involving Milan Simic, it's

7 understandable. He has to be present. Fine.

8 MS. BAEN: Yes, Your Honour.

9 JUDGE MUMBA: For those witnesses who are not discussing his

10 direct involvement, he can stay in the Detention Centre, follow the

11 proceedings on video.

12 MS. BAEN: Yes, Your Honour, as long as we have a stipulation from

13 the OTP that they will not use that evidence to prove his guilt. That's

14 perfect. That's absolutely what we want to do.

15 JUDGE MUMBA: No, no. That's a twist. Because it's the whole

16 indictment.

17 MS. BAEN: Your Honour, we can't get our client to agree not to be

18 here for those unless we have a stipulation. That's the problem. It's

19 the client's decision.

20 JUDGE MUMBA: No, no, no. You explain to the client what the

21 difficulties are, and it's a question of being reasonable, because if the

22 witnesses are not discussing his direct involvement but they're discussing

23 the indictment.

24 MS. BAEN: I totally understand your point, Your Honour. I

25 just -- we haven't gotten there with our client yet. We haven't got him

1 to agree to that yet. That's the problem. When we signed up for this, we

2 thought the Prosecution was going to be done with their case by the end of

3 November, so that's what happened at Pre-Trial Conference. That's what

4 the Judges said: This will be done -- the OTP will be done by November.

5 So we're just as anxious to move this along as you are, Your Honour, or

6 maybe just -- almost as anxious as you are. So we're trying -- we really

7 are trying to work with the Registry to move things forward, but we can't

8 get our client to agree to sit over there if they are going to be using

9 some of these witnesses against him to prove the different allegations in

10 the indictment.

11 JUDGE MUMBA: All right. Let me hear from the Prosecution.

12 MR. DI FAZIO: Well, I -- the position of the Prosecution, if Your

13 Honours please, is that naturally we are very keen to proceed with this

14 videolink proposal because, of course, I think it would expedite the trial

15 and cut down the amount of time that we're spending and give us more

16 working hours in the day.

17 As far as the general principle is concerned, of course Mr. Simic

18 has an absolute right to be at his trial, and the Prosecution does not

19 seek to do anything to interfere with that. But insofar as a stipulation

20 is concerned - and I understand that to mean undertaking or guarantee or

21 assurance or something like that - is concerned, we cannot provide any

22 guarantee or undertaking or stipulation that the witness's -- the evidence

23 of a witness will not be used against Mr. Milan Simic, and we simply will

24 not do that. However, the Prosecution can and will use its best efforts

25 to identify any witness who can give direct evidence, in the sense of

1 evidence touching upon the personal actions of Mr. Milan Simic, well in

2 advance to the Defence. That would mean that Mr. Milan Simic would be

3 present at all times when any witness is speaking directly about his

4 actions.

5 Now, for the remainder of the evidence, it will be, as far as he's

6 concerned, general background evidence, evidence of the persecutions and

7 labour, forced labour, and so on. For the remainder of that evidence, if

8 there's a videolink, and if, furthermore, there is some means of

9 communication between Mr. Simic in his cell - or wherever it is in the

10 prison that he is - and counsel in the courtroom, then I can see

11 absolutely no prejudice to him whatsoever. Everything that he wants to do

12 can be done, because if he sees something or observes something or wishes

13 to communicate with his counsel, he picks up the telephone or whatever the

14 communication device is - I don't know about the technology - and simply

15 rings Mr. Zecevic or Ms. Baen and says, "Make a note of this or that."

16 So in practical terms, I think it's an ideal and a fine solution,

17 and I would heartily commend it to the Defence and to the Chamber. The

18 Prosecution will do whatever it can to facilitate that arrangement.

19 JUDGE MUMBA: Yes, because if I mention something -- because you

20 can't -- the Prosecution can't make that undertaking, because you can't

21 determine what a witness will say.

22 MR. DI FAZIO: Not in advance, of course.

23 JUDGE MUMBA: Yes, in the witness box.

24 MR. DI FAZIO: I understand that. I understand that. Naturally,

25 we can't provide a cast-iron guarantee, but we can do a pretty good job of

1 predicting if a witness is going to speak of the direct actions of

2 Mr. Milan Simic and put them on notice.

3 JUDGE MUMBA: I think -- yes. The other question is -- because we

4 can't decide that now. We have to wait and see whether a nurse will be

5 available. The other question is: The witnesses available this week, is

6 it only the two of them, Mr. Salkic and Mr. Tihic?

7 MR. DI FAZIO: Well, that's all we've made arrangements for. Now

8 there are some witnesses who live in nearby countries, Belgium and

9 Germany.

10 JUDGE MUMBA: Because the other suggestion would be: Because

11 these two witnesses have other matters they have to attend to, it may be

12 necessary to adjourn both of them off until next year, both of them.

13 MR. DI FAZIO: May I respectfully ask why?

14 JUDGE MUMBA: The reason is we are already losing time and we may

15 not finish, definitely not both of them. The cross-examination may not

16 finish, because we may not be able to have Mr. Milan Simic in the

17 courtroom for the long hours.

18 MR. DI FAZIO: Oh, for the long hours, but we -- the hours that

19 we've been keeping up until Friday will continue this week, won't they?

20 JUDGE MUMBA: Subject to the facilities being available. I mean,

21 like now we haven't got a nurse, and it's not possible to have a

22 replacement nurse right away.

23 MR. DI FAZIO: I see. I think I misunderstand the situation. I

24 thought this was just a hiccup this morning, just a minor problem this

25 morning, or is this --

1 JUDGE MUMBA: No, no, because --

2 MR. DI FAZIO: Is this going to be ongoing for the entire week?

3 JUDGE MUMBA: The Tribunal does not control the provision of the

4 nurse. It's another company, we are informed. So the nurse who usually

5 looks after him in the morning was involved in an accident. Yes. So it

6 may not be possible to have a replacement right away.

7 MR. DI FAZIO: I didn't know that.

8 JUDGE MUMBA: Yes. The possibility is that perhaps this

9 afternoon. Yes, because this is the problem now. We may not finish the

10 cross-examination of both.

11 MR. DI FAZIO: I understand. I'm sorry. I didn't quite have a

12 grip on the situation. May I just confer briefly with my colleagues, if

13 Your Honours please?

14 JUDGE MUMBA: Yes.

15 [Prosecution counsel confer]

16 MR. DI FAZIO: Thank you. If Your Honours please, if that's the

17 case, and it looks like there is going to be problems this week with

18 hours, then the Prosecution's preference is that we would -- of the two

19 witnesses, we would prefer to forge ahead with Mr. Tihic. Now, he's not

20 arriving until tonight apparently. He's driving over from Bosnia. I

21 think he's driving via Germany, and he's going to be here tonight. That's

22 the arrangements that have been made. Now, he is on his way. It's not a

23 flight, and in terms of --

24 JUDGE MUMBA: If all facilities were available, and he will be

25 here, we will start with him in the morning on Tuesday.

1 MR. DI FAZIO: Yes, tomorrow morning.

2 JUDGE MUMBA: 9.30.

3 MR. DI FAZIO: That's the expectation. We could, yes. It wasn't

4 expected that he would start precisely tomorrow morning because we thought

5 do Mr. Salkic today and perhaps part of tomorrow and then start Tihic and,

6 God willing, finish him by the end of the week. That was what I had in

7 mind.

8 JUDGE MUMBA: Yes. We all thought that would be possible, but we

9 can't control the provision of services, which is the problem.

10 MR. DI FAZIO: I appreciate that.

11 JUDGE MUMBA: It wouldn't be nice to have a witness start

12 cross-examination and then cut them off in the middle of that and then

13 have them to come next year. It's easier to break between

14 examination-in-chief and cross-examination.

15 MR. DI FAZIO: Far easier. And that other course that you just

16 mentioned is not one that the Prosecution would be happy with, I'm sure

17 the Defence wouldn't be happy with, and I'm sure it makes it harder for

18 Your Honours to follow the evidence if we are chopping and changing from

19 topic to topic.

20 JUDGE MUMBA: Maybe what we can do right now is adjourn until we

21 are informed whether or not it's possible to have Mr. Simic this morning.

22 Otherwise, if he can't come before 11.30, then we will start the

23 proceedings at 1400 hours. Hopefully, the lunch-hour nurse hopefully may

24 agree to go and collect him. If he can't come before 11.30, then we sit

25 at 1400 hours, hopefully with Mr. Milan Simic in, and continue with

1 Mr. Salkic, you finalise examination-in-chief, we go on to

2 cross-examination, and perhaps sit up to 18.30.

3 MR. DI FAZIO: Anything that can --

4 JUDGE MUMBA: I think it's better to have specific hours, rather

5 than just keep waiting, because in the meantime the Prosecution can look

6 at the list of their witnesses and start working out those which may not

7 touch Mr. Milan Simic, and we start -- at least we use the time usefully

8 when we know we are expected in court at such and such an hour, and also

9 Defence counsel can be preparing what they have to prepare.

10 MR. DI FAZIO: We can do that, and we can come up with a plan B,

11 so to speak, in the event that disaster strikes completely and we really

12 grind to a halt. But that won't be a problem. We can do that. We can

13 arrange other witnesses for later in the week, if necessary, but as I

14 said --

15 JUDGE MUMBA: Yes. I do hope that the Defence counsel also

16 appreciate that it's much better, once you start cross-examination, to

17 finish, rather than do it halfway, in case we don't have the facilities

18 for Mr. Milan Simic another day during the week.

19 MR. ZECEVIC: By all means, Your Honour, yes.

20 JUDGE MUMBA: So it may be the situation may be that both

21 Mr. Salkic and Mr. Tihic may not be heard this week. We may have them

22 next year so that we can accommodate the problems we are facing.

23 MR. ZECEVIC: We understand the unfortunate situation, Your

24 Honour. Thank you.

25 JUDGE MUMBA: All right. So we will adjourn and wait until

1 11.30. If Mr. Milan Simic can't be here, then we will sit at 1400 hours.

2 MR. DI FAZIO: I take it if he's not turned up just before 11.30,

3 if the parties ascertain from court staff that he's not going to be here,

4 there is no need to reconvene.

5 JUDGE MUMBA: No.

6 MR. DI FAZIO: We just won't sit until 2.00.

7 JUDGE MUMBA: Yes.

8 MR. DI FAZIO: Thank you.

9 JUDGE MUMBA: The Court will rise.

10 --- Whereupon the Status Conference adjourned

11 at 9.55 a.m.

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