1 Tuesday, 12 October 2004

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.32 p.m.

6 JUDGE PARKER: Good afternoon. This matter is called on for the

7 purposes of a Status Conference, the last one having been held some

8 months ago. It seemed convenient for it to be held at this point.

9 Could I inquire first of the Accused Mr. Cermak whether you are

10 able to understand what is being said in a language you are able to deal

11 with, sir.

12 THE ACCUSED CERMAK: Yes, thank you.

13 JUDGE PARKER: Thank you very much. And Mr. Markac, are you able

14 to follow what is being said?

15 THE ACCUSED MARKAC: [Interpretation] I am, Your Honour.

16 JUDGE PARKER: Thank you very much.

17 I would ask for appearances. Mr. Scott.

18 MR. SCOTT: Good afternoon, Your Honour. Kenneth Scott for the

19 Prosecution. With me this afternoon is Ms. Laurie Sartorio, trial

20 attorney, and Ms. Lakshmie Walpita, our case manager.

21 JUDGE PARKER: Now for Mr. Cermak.

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

23 I'm attorney at law Cedo Prodanovic assisted by my colleague, Jadranka

24 Slokovic.

25 JUDGE PARKER: Thank you. And for Mr. Markac.

1 MR. SEPAROVIC: [Interpretation] I am Miroslav Separovic, counsel

2 for General Markac, assisted by Goran Mikulicic.

3 JUDGE PARKER: The purpose of the Status Conference, as each of

4 the accused men are aware, is to allow an organise for exchanges of any

5 matters that are material to the preparation of the case for trial

6 between the parties; to ensure that the preparation for trial is being

7 carried out as speedily as reasonable and practical; and also to allow

8 any issues concerning the mental or physical condition of either of the

9 two accused to be raised if there are any concerns in that regard.

10 Could I first mention that there is for consideration by the

11 Trial Chamber the matter of the motions by the Defence in respect of the

12 form of the indictment. The counsel will be aware that those papers have

13 been the subject of written submissions and those have now been

14 considered by the Trial Chamber. And I have now been in a position to

15 deal with them and that there will be in a short time from now a decision

16 in respect of those motions. They have not been overlooked. You can

17 anticipate decision in the very near future.

18 Could I now turn to the matter of disclosure, Rule 66. Could I

19 ask of you, Mr. Scott, what is the position in respect of the

20 accomplishment of the disclosure obligations by the Prosecution.

21 MR. SCOTT: Of course, Your Honour. May it please the Court, in

22 connection with Rule 66(A)(i), what has been done to date as the Chamber

23 may already know, as a quick review the supporting material was disclosed

24 some time ago. That consisted of approximately 322 items, a combination

25 of statements and documents. Among those 322 items were approximately 70

1 witness statements. This material was provided in hard copy, so to

2 speak, and also was available to the Defence and the accused in a

3 language of course that the accused understands, that is, the Croatian

4 language.

5 We did find just in the last day or two one item which may have

6 been overlooked before which we have tried to correct today. There was a

7 transcript of a witness named Josip Celic which we found does not appear

8 -- I'm allowing for the possibility that it could have been, but in our

9 recent checking does not appear was previously translated into the

10 Croatian language and to correct that we have provided counsel a few

11 minutes ago the actual audio recording that was taken in the Croatian

12 language. So by that means at least, the particular evidence is

13 available to them in an audio recording in the language the accused

14 understands. That's the only -- I think it's accurate to say we have not

15 received any contrary information from counsel in terms of any complaint.

16 With the exception of that particular item, I believe the supporting

17 material disclosure is in sound condition, as it were.

18 In addition to that, we have also provided to the Defence all

19 statements, all prior statements, of these accused, Mr. Cermak and Mr.

20 Markac. There are some considerable statements. They were all

21 transcribed from video -- primarily from video or audio recordings and

22 have been provided in a language the accused understands.

23 Beyond that, Your Honour, in looking ahead as I think Judge

24 Parker, as you know in particular from your work on the rules committee,

25 in the future more and more the OTP, the Office of the Prosecutor, will

1 be seeking to provide most of the disclosure through electronic means.

2 We believe that is the wave of the future and will be a means by which of

3 the past problems in this area can hopefully be avoided in the future.

4 That will be true subject of course to the Court's rulings and directions

5 as you care to give us. We will indeed be using electronic disclosure as

6 a major part of the disclosure in this case. Key to that is we need to

7 ensure that all the Defence counsel have taken the necessary steps with

8 the registry and those other components of the ICTY by which they can

9 gain access to the electronic disclosure system. Now, I understand Mr.

10 Mikulicic already has a password and has access to this system already.

11 Our current information, and I stand to be corrected by counsel if I am

12 wrong, is that the other counsel have not yet obtained access to this

13 system. Ms. Sartorio spoke with them, and we are happy to meet with them

14 tomorrow. We are advised they will be in The Hague tomorrow and to

15 assist them in taking the necessary steps so they will have access to the

16 electronic system. So that's where that is, Your Honour.

17 In terms of what we would propose beyond that, if you will, or in

18 addition to what I've just told you, we would propose to the Chamber,

19 Your Honour, and this is just by way of proposal, I suppose. It's a

20 report of where we are and a proposal as to where we are proposed to go.

21 By the 1st of November we believe we will be in a position to turn over

22 approximately somewhere in the vicinity of another 400 to 500 documents

23 that we think are particularly important documents to the case. I hate

24 to use another word to describe them, important. These are materials

25 that may not be on the electronic disclosure system, so for these

1 documents we would have to fall back on the old-fashioned, so to speak,

2 way of disclosure. So we have been and are identifying these documents

3 now and, as I say, our estimate is that there will be something like 400

4 to 500 documents and we believe we can reasonably provide those by the

5 1st of November which is of course just a couple of weeks away.

6 In addition, at that time we have identified approximately ten

7 additional so-called international witness statements. And international

8 witnesses is just sort of a short-hand phrase for people who are not

9 subjects or nationals of the former Yugoslavia but people who are

10 observers, ECMM monitors, international people who were on the ground at

11 the time. And we think we should be able to produce approximately ten

12 additional statements in that category by the 1st of November. Which is

13 to say, Your Honour, that we anticipate being able to supplement the

14 supporting material disclosure to date, the statements of the accused

15 disclosed to date, access to the electronic disclosure system,

16 supplemented by this additional disclosure by the 1st of November.

17 What then we would -- what we would next propose, Your Honour,

18 and subject to the Court's direction, of course, is that in connection

19 with the so-called Rule 68(i), so-called actual knowledge Rule 68

20 material, we would propose to the Chamber if the Chamber would give us

21 until approximately the 15th of December, which of course would be right

22 before the end-of-year holidays essentially to provide that disclosure,

23 specifically as to the 68(i) material.

24 We believe, Your Honour, that by that juncture, when you take

25 into account the electronic disclosure system supplemented by the

1 additional disclosure that we will provide, if you will, outside of the

2 electronic disclosure, we will have then by the middle of December

3 provided essentially -- well, the vast majority if not -- I hate to say

4 all in these circumstances when you're dealing with tens of thousands of

5 pages of material, but essentially the vast majority of the material by

6 the 15th of December approximately, with the assistance of the electronic

7 disclosure mechanism.

8 The primary item that would lead then to the future that I

9 haven't mentioned is so-called Rule 70 disclosure. As you know, Judge

10 Parker, this is a category of material that has to be -- additional

11 consents have to be provided by -- given by the provider. What we would

12 propose to the Chamber is if we could accomplish that particular

13 disclosure by the end of February. That would be the last remaining

14 substantial category of disclosure, would be the Rule 70 disclosure. We

15 think we can reasonably meet such a schedule.

16 I might just -- if the Court will allow me, I might just finish

17 up on this by noting a couple of other things. In the course of making

18 the additional disclosure we anticipate, based on our experience on other

19 cases that there may be a need, excuse me, for the Prosecution to seek

20 some particular specific protective measures as to some of these items or

21 witnesses. I'm sure you know, Judge Parker, that there is already an

22 existing protective measures order in the case. As to the case

23 generally, I believe. But again in our experience there is sometimes a

24 particular set of witnesses or a particular set of documents that require

25 something above and beyond this so-called general order that is in

1 effect. So in talking to Ms. Sartorio, we anticipate that there might be

2 some need for additional protective measures.

3 Finally, Your Honour, I would say that -- well, perhaps this

4 doesn't follow specifically in the disclosure heading. Perhaps I'm

5 getting ahead of myself. But we anticipate in the next 30 days providing

6 to the Defence an extensive set, a list of proposed agreed facts. Of

7 course we would hope that before the pre-trial process is finished we

8 could hopefully narrow this trial down to the genuinely disputed facts,

9 that we would not have to spend a great deal of the UN's money and your

10 time and our time proving facts that are not genuinely disputed. So we

11 anticipate providing to the Defence a written list of proposed facts and

12 we're optimistic that we can narrow the facts that need to be proved at

13 trial.

14 JUDGE PARKER: Thank you for what you have been able to indicate

15 so far, Mr. Scott. Could I suggest that matters such as any further and

16 specific protective measures and the last matter that you dealt with

17 needn't be the subject of further comment today; they were merely

18 prospectively looking ahead. You will wait until some specific matter

19 arises before turning to that.

20 MR. SCOTT: Thank you, Your Honour.

21 JUDGE PARKER: There was a mention of -- I have correctly

22 recalled at the last Status Conference that the Defence counsel

23 contemplated identifying categories of material that they wanted to

24 inspect. Has that occurred?

25 MR. SCOTT: Again, Your Honour, I'm sure I'll be corrected if I'm

1 wrong, but to my knowledge it has not. We have received letters from

2 counsel -- we received a letter from Mr. Mikulicic on the 29th of June

3 and one from Mr. Prodanovic on the 12th of July indicating prospectively

4 that they anticipated making some additional request of us. But unless I

5 am mistaken, which is always a possibility, I don't think we have

6 received any follow-up communications since that time.

7 JUDGE PARKER: Well, thank you for that.

8 Well, if I could ask first, Mr. Prodanovic. Is there anything

9 that you would want to comment on specifically about the provision of

10 material to you by the Prosecution to this time?

11 MR. PRODANOVIC: [Interpretation] Your Honour, the Defence of

12 General Cermak for the time being has nothing to say, no objection to the

13 way the disclosure is being effected. As Mr. Scott said we have just

14 agreed on a way to gain access to the electronic library of the

15 Prosecution's office. And the dates that the Prosecutor has just

16 indicated are acceptable to the Defence. As to the access to evidence

17 itself, we have no objection whatsoever.

18 JUDGE PARKER: Thank you very much for that, Mr. Prodanovic. I

19 could only urge you and Mr. Separovic to follow up on the electronic

20 material quickly so that you can gain access to that and become familiar

21 with it. It will enable you, I would understand, to gain access to a

22 very great deal of the material that you will need for the purposes of

23 this trial, including any pre-trial matters that you want to raise. It

24 will also enable you to defend almost any other case that's before the

25 Tribunal if you wanted to, so it's a very useful thing to be able to get

1 hold of quickly. So I would urge you both to follow that up with your

2 assisting counsel.

3 Now, Mr. Separovic, there any matter that concerns you?

4 MR. SEPAROVIC: [Interpretation] Nothing in particular, Your

5 Honour. We have no disagreement. We have no quarrel with what Mr. Scott

6 just said. The only thing is that we didn't get the transcripts of a

7 number of interviews our client had with the Prosecution in the meantime.

8 As for access to electronic material, we will make the necessary

9 adjustments of course and establish our own capacities in order to be

10 able to avail ourselves of that. Thank you.

11 JUDGE PARKER: I'm a little at a loss there. I understood from

12 Mr. Scott that all transcripts of interviews had been provided. Can you

13 throw more light on that, Mr. Scott?

14 MR. SCOTT: Yes, Your Honour. Can I have one moment to speak

15 with my assistant?

16 JUDGE PARKER: Yes.

17 [Prosecution counsel confer]

18 MR. SCOTT: Thank you, Your Honour. I just wanted to correct a

19 couple -- be sure I was connect adds to a couple of dates and also that I

20 didn't inadvertently say something in open session. Counsel is connect.

21 As the Chamber knows, and this is public one thing I wanted to check, in

22 the past several months and approximately early June, both of the accused

23 did give additional statements after coming into custody of the ICTY. I

24 believe it's those statements, if I am correct and counsel is correct,

25 those particular statements have not been processed in terms of -- they

1 are video and audio recordings. They have not been all transcribed and

2 translated, although the video itself would be available.

3 I'm afraid, Your Honour, and you've probably heard this in other

4 cases, we're quite some behind in terms of transcripts. We have a large

5 backlog of transcription. I'm sure that's where it is at the moment.

6 Having said that, I don't see any reason why at least a copy of the

7 videotapes cannot be provided in the Croatian language in the near term.

8 And the transcription, I will check today and try to move it closer to

9 the front of the queue. But we have been advised there is a considerable

10 backlog on that material. I think Counsel is correct and I stand

11 corrected on those particular items.

12 JUDGE PARKER: Can I leave it with you, Mr. Scott, to ensure that

13 as soon as practical the video recording version is provided to both

14 counsel and that as soon as a transcription is available, that that is

15 provided?

16 MR. SCOTT: Yes, Your Honour, you may.

17 JUDGE PARKER: Thank you very much.

18 Now, I understood that no concern was expressed by either Defence

19 teams in respect of the dates that you've proposed. And that being so,

20 you anticipate by the 1st of November providing a further 4 to 500

21 documents including some ten statements of witnesses from countries other

22 than the former Yugoslav republics; that by the 15th of December you will

23 comply with the requirements of Rule 68(i); and that by the last sitting

24 day in February of next year, I'm not sure what precise date that is, you

25 will have met the requirements of Rule 70 for further disclosure. Do I

1 have those dates correctly?

2 MR. SCOTT: Yes, Your Honour. Perfectly. Thank you. The last

3 day of February, the last working day of February indeed appears to fall

4 on the 28th of February, so that would be the date.

5 JUDGE PARKER: Thank you for that. Very well.

6 Now, that deals with the matters of disclosure. Are there any

7 other matters that either Prosecution or Defence wish to raise at this

8 Status Conference? Mr. Scott.

9 MR. SCOTT: Not for the Prosecution, Your Honour, other than the

10 items that you've already indicated, we don't need to address now. But I

11 think we should be able to meet this disclosure schedule and appreciate

12 the Court's guidance on that.

13 JUDGE PARKER: Thank you.

14 Mr. Prodanovic, any particular motion or matter you want to raise

15 at this point?

16 MR. PRODANOVIC: [Interpretation] Your Honour, the Defence team of

17 General Cermak has no additional issues to raise, but as far as I know

18 Mr. Separovic has something to say with regard to the health of General

19 Markac.

20 JUDGE PARKER: Very well.

21 I take it, Mr. Separovic, there are no particular motions you

22 have and you want to go on to the question of some issue concerning the

23 health of your client. Is that it?

24 We'll turn to health now. And I assume from what has transpired

25 that there's no matter that is to be raised in respect of General Cermak,

1 but you would want to raise something about General Markac.

2 Mr. Separovic.

3 MR. SEPAROVIC: [Interpretation] that is correct, Your Honour. I

4 wish to inform you about the correspondence that the Defence of Mr.

5 Markac maintains with the registry regarding his health, namely the

6 therapy given to General Markac, for which we are grateful to the

7 Detention Unit that has lent us all the necessary assistance, and on that

8 score we have no objection.

9 However, the health problems of General Markac are still serious.

10 He easily gets tired, has chest pain, and generally feels unwell. We are

11 really concerned about his health. In that respect we ask the registry

12 to enable the Croatian doctors that had treated him before from the

13 consequences of two heart attacks to see General Markac and bring the

14 medical documentation available from before, all with a view to arriving

15 at a correct diagnose and providing appropriate therapy. As I said, we

16 have an exchange of communications with the registry on this issue and

17 our request would be to allow the Croatian doctors to come here and see

18 and examine Mr. Markac because his health condition continues to be less

19 than satisfactory.

20 I'm sorry, I don't know if you are aware of this, but General

21 Markac has had surgery since his arrival in The Hague. Three bypasses

22 have been made but he still suffers from serious problems.

23 JUDGE PARKER: Thank you, Mr. Separovic. I was aware that when

24 your client originally arrived he had a longstanding history of diabetes

25 and some complications. I had not heard specifically of the surgery that

1 has taken place and thank you for informing me of that. Hopefully that

2 surgery will in due course lead to an improvement of your client's

3 condition. Although I have never had such surgery myself, I am aware

4 that there are often for a period after such surgery symptoms and pain

5 and discomfort which seems in many cases to be part of the recovery

6 process. Hopefully that is what is being experienced at the present

7 time. And as you and your client will understand, those who performed

8 this very complex surgery that you've mentioned are of course very

9 well-equipped to assess the nature of any ongoing problems.

10 The responsibility for medical treatment is with the registrar

11 and those at the Detention Unit rather than the Trial Chamber. We

12 naturally in the Trial Chamber like to be informed of any serious problem

13 and keep an eye on what is occurring, but there is not usually any matter

14 within the responsibility of the Chamber to deal with. So I could only

15 suggest, Mr. Separovic, that you continue your discussions and

16 correspondence with the registrar. I have not known in the past any

17 difficulty where it is sought to have your own medical advisor visit an

18 accused, and I would expect that that will be able to be arranged in due

19 course.

20 I don't think I can take that matter any further at the present

21 time and I certainly am not in a position to make any specific order. I

22 would just add the personal expression of encouragement and hope that

23 your client will progressively improve and will be able to feel much

24 restored in some time not too distant from now.

25 Well, if there is no further matter that needs specifically to be

1 raised, I would thank you all for your attendance and assistance and look

2 forward to the continued orderly preparation of these matters for trial.

3 Hopefully it can be got into an order ready for trial fairly early in the

4 new year. The sooner it's ready for trial, the sooner this matter might

5 actually be listed, which will be in everybody's interest. So we look

6 forward to that.

7 Thank you all very much and we will see you all in due course.

8 We will now adjourn.

9 ---Whereupon the Status Conference

10 adjourned at 3.04 p.m.

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