Page 709
1 Thursday, 28 January 2010
2 [Open session]
3 [Status Conference]
4 [The accused entered court]
5 --- Upon commencing at 2.34 p.m.
6 JUDGE KWON: Good afternoon, everyone.
7 Today, we are holding a status conference to address a number of
8 matters and ensure that we are on track for the resumption of the trial
9 hearings on 1st of March.
10 First, can I please have the appearances for the Prosecution.
11 MR. TIEGER: Good afternoon, Mr. President, Your Honours.
12 Alan Tieger, Hildegard Uertz-Retzlaff, and Iain Reid for the
13 Prosecution.
14 JUDGE KWON: Thank you, Mr. Tieger.
15 Mr. Karadzic, I see that you again are here alone, and I take it
16 that you are continuing to represent yourself.
17 THE ACCUSED: [Interpretation] I'm not totally on my own. There's
18 always someone with me in spirit. But I shall defend myself, by myself,
19 until the end of these proceedings.
20 JUDGE KWON: Very well.
21 On 19th November, 2009, the Registrar appointed
22 Mr. Richard Harvey to prepare for the resumption of the trial on 1st of
23 March, 2010, in case it should become necessary for him to represent the
24 interests of the accused at that time, following our decision of 5th of
25 November, 2009. The Registrar's appointment of Mr. Harvey is currently
Page 710
1 the subject of an appeal by Mr. Karadzic. In light of this fact,
2 Mr. Harvey was reluctant to be present in the courtroom at today's status
3 conference without the consent of Mr. Karadzic. As Mr. Karadzic has
4 objected to his presence, it is my understanding then Mr. Harvey is
5 following these proceedings from the public gallery.
6 While Mr. Harvey's role in the trial proceedings, if any, remains
7 to be determined, the Chamber trusts that he is continuing his vigorous
8 preparations for the trial in case it should become necessary for him to
9 represent the interests of the accused. Should he be experiencing any
10 difficulties with his preparations which he considers it necessary to
11 bring to our attention, the Chamber will accept any written submissions
12 on this matter that he wishes to make.
13 I would like now to go through the items on today's agenda.
14 The first item relates to the pending several binding-order
15 motions filed by Mr. Karadzic. As you are aware, Mr. Karadzic, there
16 have been a number of steps taken by the Chamber to encourage the states
17 from which you have requested material to provide that material to you on
18 a voluntary basis. Some progress has thus been made, and you have
19 withdrawn several of your motions. However, there remain a number of
20 them still pending. In order to move things along on this, the Chamber
21 will hold a motions hearing on Monday, 15th of February, to which
22 representatives of the relevant states will be invited. We therefore
23 need to compile a list of states to be invited to attend this hearing,
24 and to this end I would like to go through some of your remaining pending
25 motions and ask some further questions.
Page 711
1 The first motion relates to your motion for binding order against
2 the Government of Germany, filed on 13th August 2009.
3 In a written submission filed on 25th of September last year,
4 Germany disputed the relevance of most of the categories of documents
5 sought by the accused, and agreed to search for one category of
6 documents. I would simply note that this motion remains pending, and the
7 resolution of the matter is not expected through the parties' negotiation
8 on a voluntary basis, except for the resolution by the Chamber.
9 Therefore, the Chamber will hold a hearing on this, after which the
10 decision on the motion will be issued. The motion hearings on this will
11 take place at 9.00 on 15th of February, 2010, to which, of course, the
12 representative of Germany will, of course, be invited.
13 I turn to your next motion for binding order, i.e., against
14 Italy, which was filed on 4th of August, 2009.
15 Very recently, the day before yesterday, i.e., that is, on 26th
16 of January, Italy filed correspondence on a confidential basis, attaching
17 a number of documents. The Chamber notes Italy's indication that the
18 documents have been provided on a confidential basis and may not be
19 disclosed without its permission, which would include any public
20 disclosure, though used at trial.
21 So, Mr. Karadzic, I take it that you understand and recognise
22 these conditions.
23 THE ACCUSED: [Interpretation] Yes, absolutely. I am grateful for
24 all the government co-operation received so far. Italy provided quite a
25 few articles from different publications. So far, this is the first time
Page 712
1 we are getting something substantial. So from that point of view, I wish
2 to assure you that the Defence is not going to violate Rule 70 in any
3 way. We hope, of course, that other documents will be received from
4 Italy, too. We believe that this is not all. This has been submitted
5 for a translation, and I'm afraid that at one point in time translation
6 is going to become a bottleneck in these proceedings. So we have to be
7 aware of that, that there is going to be a great deal of material to be
8 translated, and perhaps it won't be done in time.
9 JUDGE KWON: So that triggers my second question to you, which is
10 whether, as a result of reviewing the documents, whether you are in a
11 position to state whether you will withdraw your motion or whether you
12 think it is necessary to hear from Italy at the binding-order motions
13 hearing, following which of course the Chamber can issue its decision on
14 the motion.
15 THE ACCUSED: [Interpretation] I received that in the Italian
16 language, which unfortunately I do not speak. I do not know any Italian,
17 so I have to wait for the translation to see whether that is everything
18 that we had expected. If you allow me to do so, I will respond within a
19 week's time, or, rather, as soon as I receive the translation I will say
20 whether we can withdraw that or whether we should kindly ask the
21 representative of Italy to be present here on the 15th of February.
22 JUDGE KWON: If you could let us know your position as soon as
23 possible.
24 Next item relates to your motion against France, filed on 24th of
25 August last year.
Page 713
1 On 7th December last year, a confidential letter from France was
2 filed, attaching a document in response to the accused's request. We
3 note that you have indicated that, in principle, you do not oppose the
4 protective measures requested by France. Therefore, likewise, the
5 Chamber wishes to clarify whether it is your position that the provisions
6 of Rule 70 apply to the document you have received from France.
7 THE ACCUSED: [Interpretation] Of course, that applies to France
8 as well. I do appreciate the fact that this one document came in, but I
9 believe that France has a great many more documents, since the French
10 military and political presence in the Balkans, especially in Bosnia, was
11 massive. I'm convinced that France can help us a great deal.
12 As for Rule 70, of course, it applies to each and every country,
13 France included. The Defence is not going to reveal any confidential
14 documents to anyone.
15 If we do not receive anything else by the 15th, and I am
16 convinced that France has significant documents and knowledge about
17 developments and the essence of the crisis in Bosnia-Herzegovina, then we
18 would be pleased to see here the representatives of France on the 15th of
19 February as well.
20 JUDGE KWON: So in order to clarify this matter, I wonder whether
21 you have received any other responses from France to your follow-up
22 request.
23 THE ACCUSED: [Interpretation] No. I received that one document,
24 along with the letter, and I wrote again on the 7th of January, and I
25 provided them with some specific information concerning the documents
Page 714
1 that we need, that the Defence needs. However, so far I have not
2 received a response to that letter. We are expecting that. I did that
3 because I thought it would be right to try to reach an agreement before a
4 decision is made by the Trial Chamber. So the letter went on the 7th of
5 January, and we hope that we will get a response and it does provide
6 localities and other specific information concerning documents that we're
7 interested in.
8 JUDGE KWON: To wrap it up, when do you think you are in the
9 position to tell us whether, in your opinion, it is necessary to hear
10 from France at the binding-order motions hearing?
11 THE ACCUSED: [Interpretation] At the moment when I receive yet
12 another reply from them. If it is an exhaustive reply and if we receive
13 all the documents that we believe and know the French government has, at
14 that moment I can state my views. The Defence will promptly state its
15 views to the Trial Chamber. However, if we do not receive that, and if
16 there is a significant amount of documents that are not being sent in,
17 then we would like to see a representative of France here. Believe me,
18 France is one of the most important countries in this crisis. They gave
19 a major contribution to peace, and their representatives in the civilian
20 sector and their military officers rendered a major contribution.
21 JUDGE KWON: Do you, by any chance, know by when the French
22 government will respond to your request?
23 THE ACCUSED: [Interpretation] I have no indication whatsoever. I
24 know that I sent my letter on the 7th of January. I do not have any
25 response. I haven't had one over these past three weeks. I have no
Page 715
1 indication as to when they're going to reply. Perhaps, in a way, this
2 could be an encouragement. A public appeal to the French government to
3 act in that direction, that would be a good thing.
4 JUDGE KWON: Then I will turn to the next motion against Bosnia,
5 which was filed on 1st of September, 2009.
6 Again, my question for you, Mr. Karadzic, is whether you have
7 received a response from Bosnia to your follow-up request, and what your
8 position is with regard to the documentation that you have received from
9 Bosnia. Is there any change from the information you provided in your
10 memorandum of 8th of January?
11 THE ACCUSED: [Interpretation] Before the 7th of January, I
12 received six documents that are rather useful. However, they are just a
13 tiny part of what we need from Bosnia-Herzegovina, from the government
14 documents there. I repeated my request of the 7th of January, as I did
15 in the case of France. There are going to be a few more significant
16 requests addressed to the Bosnian government. They had investigations
17 carried out in respect of their own units and their own criminals, and
18 that caused certain behaviour on our part in Sarajevo. So without that,
19 the proceedings would not be fair. Therefore, we are expecting to hear
20 from them so that we could submit new requests to Bosnia.
21 What is encourage is a statement made by Samo Siketic, the
22 minister of defence of Bosnia-Herzegovina, that I will receive everything
23 I'm asking for from Bosnia-Herzegovina. However, things are moving
24 rather slowly. If we do not receive anything by the 7th of February, for
25 instance, it would be a good thing if not only a representative of
Page 716
1 Bosnia-Herzegovina would be here on the 15th of February, but also a
2 representative of the OHR, the Office of the High Representative in
3 Bosnia-Herzegovina, who has the power and authority to persuade each and
4 every institution in Bosnia-Herzegovina to co-operate with this Tribunal.
5 We will, indeed, have to wait for quite a few documents coming in from
6 them.
7 JUDGE KWON: My next question is about Croatia, the motion about
8 which was filed on the 11th of September, 2009.
9 Once again, I would like to know whether you have received a
10 response from the Croatian government to your follow-up letter of 7th of
11 January, and what your position is with regard to the documentation you
12 have received from Croatia.
13 THE ACCUSED: [Interpretation] As for these 15 documents that I
14 received from Croatia, they are, indeed, useful. However, they only
15 represent a tiny part of what Croatia can provide us with. I haven't
16 received any response from Croatia yet, either, to my letter of the 7th
17 of January. However, they had elections held in their country, there is
18 a new president, and I understand that this was not a priority of theirs.
19 At any rate, it would be a good thing if a representative of the Croatian
20 government would be here on the 15th of February as well.
21 JUDGE KWON: My next question is regarding the Government of
22 Netherlands. The motion was filed on the 11th of September, 2009, and it
23 seems to me that there are two remaining documents which the Netherlands
24 has indicated it is trying to locate.
25 Do you have any update on this, and do you wish to withdraw your
Page 717
1 motion in light of the material that you have received, as you did in
2 relation to the United States?
3 THE ACCUSED: [Interpretation] I'm very grateful to the Dutch
4 government for these nine documents and for the efforts made to find
5 these additional two documents. If this does happen and if they can be
6 encouraged to that effect, namely, that we receive these documents, it
7 would not be indispensable to have them present here on the 15th of
8 February. At the moment I would receive these two additional documents,
9 I would withdraw my motion.
10 JUDGE KWON: I have to correct myself, that you didn't withdraw
11 your motion with respect to the United States; instead, that your motion
12 was denied without prejudice.
13 Yes. Next question is about Iran, the motion about which was
14 filed on 26th of August, 2009.
15 The Chamber has granted an extension of the dead-line for Iran to
16 respond to the motion, and that dead-line expires tomorrow. So unless
17 you have anything further to say on this, Mr. Karadzic, I think we will
18 have to wait for Iran's response before deciding what further action to
19 take on this one.
20 Do you have anything to say, Mr. Karadzic?
21 THE ACCUSED: [Interpretation] Well, I do expect Iran to provide
22 this to us. So far, we have established that the USA encouraged Iran to
23 violate the UN resolution on the arms embargo. Now Iran is being
24 threatened by sanctions from the United States, in view of the nuclear
25 programme of Iran's, so I don't see why Iran would not show us documents
Page 718
1 that we know do exist. So I think we should go on insisting that Iran
2 submits these documents. If we do not receive them by the 15th of
3 February, it would be desirable to have a representative of the
4 Government of Iran present here. I believe that it is also in the
5 interest of Iran to provide these documents to us, because this is,
6 indeed, a drastic violation of Security Council resolutions, and this did
7 affect our situation in Bosnia-Herzegovina. It kept the war going, and
8 it put off a political solution in the country, et cetera.
9 JUDGE KWON: My last question regarding the binding-order motions
10 is related to Pakistan, the motion of which was filed on 10th of August,
11 2009.
12 Mr. Karadzic, yesterday we received your submission notifying us
13 of your withdrawal of this motion. The Chamber, therefore, does not
14 consider that there is any further action it needs to take in relation to
15 Pakistan at this time.
16 THE ACCUSED: [Interpretation] Yes, I do agree, although it would
17 be very useful to have interviews with their general who was head of
18 their secret services. Obviously, we have a problem in that regard, so I
19 decided to withdraw that motion.
20 JUDGE KWON: Thank you. That exhaust my list of pending
21 binding-order motions, and we will take into account what you have said
22 today, and, indeed, hold the hearing on 15th of February, 2010,
23 commencing at 9.00 a.m., to which the representatives of several states,
24 which will, no doubt, include the Government of Germany, will be invited.
25 We will notify you as soon as possible which states will be invited to
Page 719
1 this hearing.
2 Mr. Tieger, should the Prosecution wish to participate in the
3 hearing, I believe that would be helpful.
4 The only final question I wish to ask, in connection with the
5 binding-order motions, is whether you anticipate filing any further
6 binding-order motions in the coming weeks, Mr. Karadzic.
7 THE ACCUSED: [Interpretation] I beg your pardon. Are you asking
8 me?
9 JUDGE KWON: Yes, Mr. Karadzic, whether you are planning to file
10 any further binding-order motions.
11 THE ACCUSED: [Interpretation] Well, that depends on whether we
12 are going to receive additional material from Bosnia-Herzegovina, because
13 they have a vast amount of material pertaining to investigations of the
14 members of their own military police, and we have objections to their
15 conduct, and we believe that it is of relevance in respect of the conduct
16 of our armed forces, our police, and our civilians. So that is to be
17 expected.
18 As for this letter to the United Nations, perhaps -- I beg your
19 pardon. The United States of America. Perhaps we should write to the
20 United States of America again. At first, they showed goodwill, they
21 really wanted to help us, but then they provided us with material that we
22 didn't actually need, that we weren't really asking for.
23 Turkey, to the best our knowledge, has some important material as
24 well that would be of major significance for these proceedings.
25 We'll see. I believe that we are going to file a binding-order
Page 720
1 motion as well that EU and the UN should also disclose some documents to
2 us, and I believe that we are going to make certain requests in this
3 respect. As you know, on the 8th of January we filed a 54 bis motion,
4 and we'll see what its fate will be.
5 JUDGE KWON: Very well.
6 Given that the binding motions hearing will be mainly of a legal
7 nature, I would strongly recommend that your legal adviser be present at
8 the hearing on 15th of February.
9 Is there anything else that you wish to raise on this general
10 topic before we move to the next item of the agenda for today, i.e., the
11 binding-order motions?
12 THE ACCUSED: [Interpretation] I think not, Your Excellency. At
13 this point in time, no.
14 JUDGE KWON: I come to, then, the other pending motions.
15 In addition to the binding-order motions, there remain a few
16 other motions pending before the Trial Chamber. There's no need to get
17 into the detail of any of these today, unless either party has specific
18 questions to raise.
19 The Chamber is considering each of these motions carefully, and
20 it is our hope that decisions on some of them will be issued prior to the
21 resumption of the trial proceedings on 1st of March. In particular, the
22 decisions on the two remaining Rule 92 bis motions filed by the
23 Prosecution should be issued prior to the resumption of the trial,
24 possibly also the decisions on the two remaining Rule 92 quater motions
25 filed by the Prosecution.
Page 721
1 I would hope also the decision on the Prosecution's motion for
2 leave to file a supplemental Rule 65 ter exhibit list. However, much
3 depends on other developments between now and the 1st of March, but I
4 simply wish to inform you that the Chamber is making progress on these
5 and the other pending decisions, and we will do our best to issue them in
6 the coming few weeks.
7 Does either of the parties have any comments to make on this
8 matter?
9 Yes, Madam Uertz-Retzlaff.
10 MS. UERTZ-RETZLAFF: Your Honour, just one point.
11 You have not mentioned the motion for additional notice of
12 adjudicated facts, Sarajevo, Dragomir Milosevic. It would be definitely
13 helpful to get a decision on this motion as well, because that may lead
14 to the fact that we can withdraw further witnesses from the Sarajevo
15 component of the case. It would be very helpful. I'm aware that it was
16 filed late, and the response is due also on the 15th of February, but
17 perhaps it is still possible. It would be helpful, definitely.
18 JUDGE KWON: We are aware of that situation, and the Judges, as
19 well as all the staff, are working very hard on it. But we're looking
20 forward to the accused's response, which is due on 15th of February, as
21 you indicated. Thank you, Madam Uertz-Retzlaff.
22 Mr. Karadzic, do you have anything to add to this as regards
23 pending motions?
24 THE ACCUSED: [Interpretation] In principle, I notice and I'm
25 afraid that either due to the haste for the closing strategy, I note a
Page 722
1 tendency for this trial to be transformed into a paper trial. Every
2 effort is being made to reduce to a minimum the appearance of witnesses
3 here. A large number of them are under 92 bis - unfortunately, there are
4 some 20 - and 92 quater, a large number of adjudicated facts, and I
5 wonder how we're going to establish the truth here, not only about my
6 involvement in the events but the events themselves, because I claim that
7 that truth has not been established in any trial so far.
8 It is my duty to inform the trial that for us in the Balkans, and
9 from our own legal system, the differences in legal systems has a
10 terrible effect. We have an investigating judge who co-operates with
11 both parties and who establishes a large number of facts even before an
12 indictment is issued. Here, we have only the one-sided investigation of
13 the Prosecution, and our people simply cannot find their way because of
14 the absence of an investigation. Therefore, my appeal would be to have
15 as few paper documents as possible and to have as many live witnesses so
16 that we can really judge the facts on the basis of investigation that I
17 will undertake if I am given the time and the funds to do it, because
18 otherwise we wouldn't have to appear at all. We could mathematically
19 look through the documents, add up the facts, and pass judgement. And
20 I think this is the last chance for us to make an improvement in that
21 sense.
22 As you know, I'm, in principle, opposed to a paper-ish trial, but
23 the members of my team will do everything in their power to interview as
24 many of the 92 bis witnesses as possible. And as you have seen, we have
25 already done so with some and have provided some additional information.
Page 723
1 And we will -- for each witness that we interview, we will seek that that
2 witness appears.
3 You will see that there are witnesses who did not appear
4 anywhere. No one examined them, and their statements were built into
5 other trials and now they are to be built into this one, but no one has
6 tested such statements through a cross-examination. And you will see how
7 many witnesses of this kind we have. So this is a completely paper
8 trial.
9 JUDGE KWON: Mr. Karadzic, as you'll see in the future, we'll be
10 hearing evidence of witnesses coming to The Hague for more than at least
11 two years from now, and this is far from being a paper trial. In any
12 event, the Chamber will do its utmost to ensure that your trial be a fair
13 one and your rights -- your fundamental rights not be infringed by any
14 means.
15 The next item relates to logistical problems raised by the
16 accused's letter of 15th of January, 2010. In this regard, I'd like to
17 note for the record that Ms. Anna Osure, the acting head of the Office
18 for Legal Aid and Detention Matters in the Registry of the Tribunal, is
19 in the courtroom to answer any questions that the Chamber may have.
20 Thank you, Ms. Osure for coming by.
21 Mr. Karadzic, you raised three issues with the Chamber in a
22 letter sent on 15th January which you say are impeding your ability to
23 continue your trial preparations. Upon receipt of that letter, the
24 Chamber asked the Registry to provide it with a report on the issues
25 raised. That report was sent to you by the Chamber's legal officer on
Page 724
1 22nd January, and you were invited to make any further comments you
2 wished in advance of the status conference. You chose not to do so.
3 So can I address the last of these three issues set out in your
4 letter; first, which relates to your ability to access your electronic
5 files when you are in the courtroom.
6 The Registry has informed us that the arrangements have been made
7 for you to access your own files on a network either from the UNDU or
8 from here in the courtroom, and this will be operational by 1st of March.
9 This seems to have resolved that particular issue.
10 Do you have any say on this matter, Mr. Karadzic?
11 THE ACCUSED: [Interpretation] Your Excellency, this hasn't been
12 settled, because I was promised in June last year that I would have
13 access to a server, and the memory has already been extended twice
14 because the memory is insufficient. And Lord Bonomy instructed orally
15 that I should receive an external hard drive with a sufficient amount of
16 memory, because otherwise something is always lost or upset when the hard
17 drive is being changed, and it is very difficult to work with it after
18 that. So in June last year, I was promised to have access to a server in
19 my room, and a line has been attached, and a nice gentleman has come to
20 see what the signal is like. And since then, nothing has happened.
21 I was also promised access to the phone because I'm bothering the
22 other people in the cells by my calls.
23 Very well, I limit myself to this issue. We'll come back to the
24 telephone.
25 For me, all this is coming late. I should have had this last
Page 725
1 year to be able to get insight into this vast amount of material.
2 There's more than two million, and the pages disclosed by the Prosecution
3 consist of two and a half million pages, so you can imagine how difficult
4 it is. I don't have a proper team. I only have two team members that
5 are being paid for. So I think this is a very serious impediment to my
6 working properly and on time.
7 JUDGE KWON: Mr. Karadzic, let us deal with matters one by one.
8 I wonder whether you have before you the memorandum conveyed to
9 you through the Registrar. It enumerates three issues: First, access to
10 telephone; second, computer storage space; and, third, use of files in
11 the courtroom.
12 The issue I raised initially was the third issue, use of files in
13 the courtroom, but my understanding that the matter you raised is related
14 to the second one; i.e., the computer storage space or the size of the
15 memory.
16 So what is your observation in relation to the third matter,
17 which I understand will be resolved by 1st of March.
18 THE ACCUSED: [Interpretation] I apologise, Your Excellency.
19 Which is the third question; access?
20 JUDGE KWON: Use of files in courtrooms. So I can repeat my
21 question.
22 THE ACCUSED: [Interpretation] Oh, yes, I understand now. I
23 understand, Your Excellency.
24 If we are talking about use of files in the courtroom, I don't
25 need that before the actual beginning, whenever that beginning is. But
Page 726
1 regarding the beginning, it would be useful to have it at the beginning,
2 though, of course, I would need a little time to practise. And if I
3 receive payment, I hope I will have someone in the courtroom to assist me
4 in the use of these files in the courtroom.
5 JUDGE KWON: Okay. I will come to the second issue raised by you
6 in your letter. I think it is somewhat connected, in that it relates to
7 your ability to store your files electronically, as you indicated.
8 Am I correct in understanding the problem is simply one of memory
9 or the size of memory, and what you are seeking is a way to increase the
10 memory that you have on your computer so that all of your files can be
11 stored and easily accessed? Am I correct in so understanding?
12 THE ACCUSED: [Interpretation] In the meantime, I have had two
13 expansions of memory. At this point in time, there may be some reserve
14 memory. What I gathered from OLAD last June was that I would get a
15 server that I would be able to access both from the courtroom and from my
16 room, and that my three confidential advisers would be able to have
17 access to that server while in the Tribunal building, so that we would be
18 able to exchange information.
19 Let me just tell you what kind of problems I am confronting.
20 I can have an adviser here for three days a month. He is paid to stay
21 for only three days. So if no one is present here, for instance, the
22 ICMP material, there were 973 pages, I wanted to send them by e-mail or
23 in some other way. I would have to print it for this to be sent by fax.
24 And for this, it would take three days. And in view of the progress made
25 in technology, I should be able to communicate with my team both by
Page 727
1 telephone and through the server, but I have learnt that they would not
2 have access to this material. Why not, if they are my advisers and have
3 a confidential status?
4 There's some rules that I simply do not understand. They are
5 highly limiting. We are in a worse position now than in November, when
6 we were discussing the beginning of trial.
7 JUDGE KWON: I don't think Judges are that computer literate, so
8 we may need the assistance of Ms. Osure. So could you let us know what
9 the situation is?
10 MS. OSURE: Thank you, Your Honour. I would like to first
11 clarify the information the accused has just informed the Court about,
12 that he was apparently informed by OLAD that he would be -- his legal
13 associates would be able to access the server.
14 Now, unfortunately, this cannot be done, and the reason why we
15 cannot do this is because there are controls in place in the
16 Detention Unit particularly with regard to exchange of digital
17 information, and it's only counsel who represent an accused who can
18 exchange digital information, and they do this by providing the digital
19 information, for example, CDRs, DVDRs, to the management of the
20 Detention Unit, who then pass it on to the accused and back to them
21 again. These controls are in place for a purpose and the security and
22 good order of the Detention Unit, as well as the computer regulations
23 they have to be controlled.
24 Now, we have extended this to legal associates to
25 self-represented accused who are not counsel but are support staff to the
Page 728
1 self-represented accused, and it's a position of trust and immense
2 responsibility, indeed, but they have been -- I'd say the Registry has
3 granted them this privilege to enable them to be able to conduct the very
4 limited role of consultation with the accused.
5 But now to go to the extent of also allowing them to exchange
6 electronic files with the accused really is beyond anything that we can
7 allow. This means that we will not be able to control any of the
8 movement of digital material between him, meaning the accused, and his
9 Defence support staff. And in addition, we've also -- this is even
10 ground-breaking. We've even provided or are working towards providing
11 him a server in the Detention Unit, of course, which he can access here,
12 which we've gone through all over the world, we've checked examples and
13 seen how this is done, and found that there's no detention facility where
14 this is done.
15 So we've really just reached the limit. This is the most we can
16 do, and, unfortunately, we cannot allow his support staff, just as we
17 cannot allow counsel, to share electronic files in this manner.
18 Thank you, Your Honour.
19 JUDGE KWON: Sharing the information in this manner, meaning
20 using a server system; is it correct?
21 MS. OSURE: Yes, Your Honour, it's correct.
22 JUDGE KWON: Mr. Karadzic, would you like to make any observation
23 to this?
24 THE ACCUSED: [Interpretation] Yes, Your Excellency.
25 Let me say this: First of all, I am surprised that the
Page 729
1 confidential relationship between the accused and his associates, even if
2 he's defending himself, I'm surprised that such a confidential
3 relationship has to be controlled. These are three legal advisers who
4 have been nominated here, and they enjoy privileged status. But I am not
5 opposed to the Detention Unit having the password for this server and for
6 them to supervise the information we are exchanging. Of course, I would
7 be opposed if the Prosecution would have insight. But for everyone else,
8 I don't mind whether they have access or not.
9 It is impossible for me to receive 1.500.000 electronic pages
10 without having the electronic ability to exchange this with my
11 associates. We can't be half fish, half maiden. We can't use
12 technological advances only up to a point. Either all million and a half
13 pages will be printed, which is a terrible undertaking and expense, or my
14 advisers with a privileged status should be able to have access to what I
15 have on the server, and vice versa. But I'm not opposed to the
16 Detention Unit or whoever, except for the OTP, whoever wishes to have
17 insight or to control these files, though I believe that between the
18 accused and the privileged members of his Defence team, there shouldn't
19 be any control, because these are professionals and they have obligations
20 towards this Tribunal and towards their profession.
21 So I feel that my hands are tied. I have rights, but not the
22 ability to make use of those rights. So I simply do not understand. Or
23 let us then go back to printing everything, because this kind of
24 limitation due to a lack of confidence -- but as I am saying, I allow
25 everyone to have access to what I am exchanging with my legal associates,
Page 730
1 except for the OTP, the opposing party.
2 JUDGE KWON: However, in any event, this is not a proper place to
3 resolve the issue, and we have to leave the matter at that now. So it is
4 mainly for the Registrar to regulate the practice, and only to the extent
5 it affects your right to the fair trial the Chamber will look into the
6 matter. So we advise you to raise, in writing, if you find it necessary,
7 to bring it to the attention of the Chamber.
8 Let me turn to the first issue, i.e., the telephone lines. And I
9 would like to understand how the system currently works and wonder if
10 Ms. Osure again can help us on the number of phones -- the number of
11 phone lines available to Mr. Karadzic, how many other detainees those
12 phone lines are shared with, and what the real assessment of the
13 telephone infrastructure of the UNDU entails.
14 Ms. Osure.
15 MS. OSURE: Thank you, Your Honour. The accused has access to
16 two telephone lines in his wing in the Detention Unit. There's a
17 privileged line and a monitored line.
18 Now, in addition to this, there is also a privileged line in the
19 office used by self-represented accused, which we continue to encourage
20 him to use, but unfortunately he has not made use of it. Now, if he
21 could make use of the telephone in the office for self-represented
22 accused, that would certainly alleviate some of his concerns.
23 At the moment, I wish to highlight that we are working towards
24 changing the infrastructure of telephone access by detainees, and
25 although we will maintain the same access for the monitored line, this is
Page 731
1 a much bigger project that will take a lot more time than we anticipated
2 in the beginning. But as an interim measure, we have already contacted
3 the relevant authorities so that we put in place a monitored line in the
4 office used by self-represented accused. And if the accused does use
5 this line, which we hope shall be put in request, as we've requested it
6 as a matter of urgency, so we hope it should be put in place hopefully as
7 soon as the technicians from the relevant company are able to do so, he
8 will certainly be able to have access to this line and share it with the
9 other self-represented accused. Currently, the total number is three.
10 So once again I mention that we encourage him to make use of the
11 facilities in this office, as opposed to using the telephones in the wing
12 shared by all the other accused.
13 Thank you very much.
14 JUDGE KWON: Mr. Karadzic, would you like to make any observation
15 on this?
16 THE ACCUSED: [Interpretation] That would be nice if it were as
17 Ms. Osure has described it, but it is not. I can provide three numbers
18 of my associates, and they are rarely in the office. So I can call on
19 the privileged line only when they're in the office, not on their mobile.
20 Furthermore, I do not have a phone in the office that I should
21 use as a self-represented accused. There is an attachment, but there's
22 no telephone. I don't mind if it were to be monitored, but let me
23 explain how it is in the Detention Unit.
24 There are many breaks when I cannot telephone. There are two
25 walks, one or two sports activities, two breaks for lunch and for dinner,
Page 732
1 so that during that time I cannot use the phone. For the rest of the
2 time, I share this public telephone with the other detainees. Of course,
3 my needs are greater, because they call their family and lawyers, whereas
4 I call my associates and investigators. So I spend an enormous amount of
5 time on the phone. And luckily we still haven't quarrelled, but this
6 leads to tensions, and it is unnecessary to have such tensions.
7 The privileged line, I can only use the privileged line rarely,
8 because as I have said, my associates are not always in the office. If I
9 were to receive tomorrow a monitored line in the office, as Madam Osure
10 has said, this would solve the problem to a high degree. It's not
11 difficult for me to go to the office and to call from there, and even pay
12 if it is necessary, and there's no problem if it is monitored, but I need
13 to spend an enormous amount of time on the phone. And this would solve
14 it if it were to be in the way Ms. Osure has said, but it is not, if you
15 take into account the breaks, the fact that I cannot reach my associates
16 in their office because they're not there. So I don't have much use of
17 the privileged line.
18 But, Your Excellency, with your permission, I don't need this on
19 the 1st of March or whenever the proceedings begin. I needed this
20 yesterday, the day before, last year, because I am unable to contact my
21 associates. They need instructions from me, and I do not have the
22 ethical power to give them instructions when they were not paid for it.
23 There's some amateurs that are helping me in the preparation of this
24 trial, so I have to communicate with them. And amateurs are, of course,
25 nonprofessionals.
Page 733
1 JUDGE KWON: I wonder whether Ms. Osure wishes to reply to
2 Mr. Karadzic's comment.
3 MS. OSURE: Your Honour, I do not have anything further to add,
4 but I would like to, once again, inform Mr. Karadzic that indeed we're
5 working towards making sure that a monitored line is placed in the office
6 for self-represented accused, and you will be able to share this with the
7 other self-represented accused. But unfortunately we cannot provide you
8 with a telephone to use on your own, as you have requested not just now,
9 but you have frequently requested, because we did undertake a policy
10 decision that this would not be done again after the Parker report in
11 which Judge Parker informed -- or, rather, stated -- concluded that the
12 fact that the former president, Slobodan Milosevic, had a phone of his
13 own, could have compromised security. And on this I refer you to
14 paragraphs 129 of this report and the first lines of paragraph 130.
15 So as a result of a policy decision, we will not be providing
16 telephone lines to any detainee to use on their own in the same fashion.
17 But if you can bear with us, you will be provided -- all self-represented
18 accused will be able to use a monitored line that will be placed in the
19 shared office.
20 Thank you very much.
21 JUDGE KWON: So we'll leave the matter there, and I hope this
22 opportunity -- has served as a good opportunity to understand each other.
23 And I advise you to work with the Registry or discuss with them further
24 for the further improvement, if any. And if you find there's an issue
25 that relates to your right to a fair trial, then raise it to the Chamber
Page 734
1 in writing later on.
2 THE ACCUSED: [Interpretation] May I, Excellency? I'd like to add
3 something.
4 First of all, I don't think that President Milosevic did
5 something intentionally or consciously with that telephone.
6 Secondly, there's no reason to deny me that. However, I will be
7 pleased if I have a monitored line in the office for work. Whenever I
8 need to, I'll go down to that office and use that line. But the
9 important thing for me is to be able to reach my associates at any point
10 in time, no matter where they are. I also do not mind about the
11 privileged line.
12 JUDGE KWON: Thank you. I hope that measure could be implemented
13 as soon as possible.
14 Then I turn to my last agenda relating to the resumption of trial
15 on 1st of March in 2010.
16 The Chamber has ordered that the trial will resume on 1st of
17 March, 2010, which is a Monday. We will plan to sit for three days that
18 week, as we indicated earlier on.
19 And for the remainder of March, the Registry has not yet prepared
20 the March court schedule, and as you know, there will be many cases
21 sharing our three courtrooms, so I cannot yet tell you which days or
22 times we will sit. But it remains our hope that we will be able to group
23 together sitting days so that, for example, if we sit on Wednesday,
24 Thursday, and Friday one week, we can sit on the Monday, Tuesday, and
25 Wednesday of the following week. This may not always be possible.
Page 735
1 However, the Registry will do its best to accommodate us. In this
2 regard, I would like to express our deep appreciation for the commendable
3 efforts by the Registry, in particular the CMSS, to enable us to conduct
4 simultaneously nine trials in three courtrooms for March.
5 On a separate note, the Chamber's order on the procedure for the
6 conduct of trial of 8th of October, 2009, sets out the timing of
7 notification of witnesses on a monthly and weekly basis. Indeed, we
8 received notification from the Prosecution in October and November of
9 last year indicating the witnesses it intends to call first at trial.
10 I'm sure that everyone is working on the assumption that those lists
11 remain largely unchanged. Nonetheless, it would be helpful if the
12 Prosecution could file the necessary witness list for March and April so
13 that it is absolutely clear to everyone if there has been any change.
14 According to my reckoning, this would mean that on 1st of
15 February, the Prosecution should file its witness list for March and
16 April, and on April 1st it should file its witness list for May and June,
17 and so on.
18 Similarly, on 20th February or the next working day, the
19 Prosecution should file its monthly list for March which includes a few
20 more details pertaining to exhibits and the time to be taken for
21 examination-in-chief.
22 Mr. Karadzic, you should file by 27th February, or the next
23 working day, your notice of the time you expect to take in
24 cross-examining the Prosecution's listed witnesses for March.
25 On 25th February, the Prosecution will need to file its weekly
Page 736
1 witness list for the week beginning 1st of March. And on 26th February,
2 Mr. Karadzic should file his notice of his time he expects to need for
3 cross-examination of those witnesses.
4 This issue of witness notification leads us to another issue,
5 which is your opening statement, Mr. Karadzic.
6 In order for the Prosecution to be able to schedule travel for
7 its first witnesses and for you to be able to file the appropriate
8 notification, it needs to know, I imagine, whether you intend to take up
9 two days, the 1st and 2nd of March, for your opening statement. You had
10 indicated previously that you would need the same time as the Prosecution
11 had for its opening statement, and so we are prepared to set aside those
12 two days for that purpose. But if you have decided to defer your opening
13 statement until the start of your Defence case, or if you already know
14 that you will need less than the two days, it would be helpful if you
15 could let us know now.
16 Mr. Karadzic.
17 THE ACCUSED: [Interpretation] Thank you, Excellency.
18 I'm afraid that the beginning of the trial on the 1st of
19 May [as interpreted] is imperiled by the further deterioration in the
20 conditions that the Defence is facing, but I'll get back to that later.
21 As for the opening statement, I stand by what I have already
22 decided. Two days, a total of six hours, like the other side had, the
23 other party. It would be a good thing if I had more time, but I don't
24 think it will be less. I will do my best to present, during those six
25 hours, everything that I believe is necessary so that the Chamber and the
Page 737
1 opposing party could hear that at the very outset. That will provide
2 certain directions -- or, rather, a road map, as it were, in terms of the
3 direction in which the Defence will be moving.
4 As for notice of time for cross-examination, of course, if it's
5 the 1st of March, then on the 26th or 27th of February I will be in a
6 position to say so, if I receive information on the 20th of February.
7 However, I have to say in advance that I'm afraid that the greatest
8 problem here is going to be the time given to the Defence. Namely, since
9 there is such a great deal of adjudicated facts and material according to
10 Rules 92 ter and quater, the Defence will need a lot more time than what
11 the Prosecution will use, for example, for 92 quater examination of
12 witnesses. I hope that the Trial Chamber will see how necessary this is
13 for the Defence, of course, provided that we use our time efficiently and
14 rationally. However, it is a fact that time is going to be our greatest
15 enemy once the trial starts, the greatest enemy of the Defence, that is,
16 even more so because the Defence will have to keep investigations going
17 on all the time because of that difference in systems that I already
18 mentioned and that is so disastrous for defendants coming from the
19 Balkans.
20 JUDGE KWON: So for clarification, then, can I take it that you
21 are, indeed, planning to present your opening statement on 1st of March
22 for two days?
23 THE ACCUSED: [Interpretation] Yes, if you decide that it is going
24 to be the 1st of March after all. However, there is this other point
25 that I wish to speak about; namely, the preparations of the Defence. If
Page 738
1 you give me the opportunity to do so, I will then present my position.
2 Namely, I will file another motion for postponing the start of trial.
3 It's not that things haven't improved. On the contrary, things have
4 become worse during this break, which was no break at all for the
5 Defence.
6 JUDGE KWON: Unless the Prosecution has a matter to raise at this
7 moment, I will hear from the accused on that matter.
8 MR. TIEGER: No, nothing to raise at this moment, Your Honour.
9 [Trial Chamber confers]
10 JUDGE KWON: Mr. Karadzic, you indicated you are minded to file a
11 further motion for further postponement, so the Chamber is of the view
12 that you should do so; that is, to file a motion in writing as soon as
13 possible, unless you have a very urgent matter to raise at this time.
14 THE ACCUSED: [Interpretation] I do, Your Excellency. I cannot
15 file it now in writing until I see what it is that OLAD or, rather, the
16 Registry is providing for me. There are some minor misunderstandings,
17 or, rather, there are certain things that are minor but cause a major
18 effect in terms of Defence preparations. For one, the OLAD believes that
19 the trial has not started yet, whereas the Trial Chamber believes that
20 the trial has started. And OLAD believes that they don't have to pay
21 anything for these three months that have been provided until the 1st of
22 March, because they believe that this is a break. It is not a break for
23 the Defence. It is not only that we have to deal with the previous
24 material, but during this so-called break the Defence received almost
25 300.000 new pages disclosed by the OTP. That is to say --
Page 739
1 JUDGE KWON: Mr. Karadzic, if you're going to raise the issues
2 relating to remuneration of your legal advisers and legal associates, I
3 will say there's no point at this time to raise it at the status
4 conference. My understanding is that those matters are before the
5 President, and I hope that those matters will be resolved as soon as
6 possible.
7 THE ACCUSED: [Interpretation] The first decision of the President
8 of the Tribunal for the pre-trial phase was a very reasonable one, and we
9 are satisfied with that decision. And in that decision, the President
10 ruled that the position of OLAD was unreasonable. So it really depends
11 on the President's decision, how much postponement I'm going to ask for.
12 Things became worse because 291.000 new pages, to be precise, were
13 disclosed by the OTP in the meantime. I believe that it does pertain to
14 fairness of trial if the Defence has no conditions to prepare, not to go
15 into the question of equality of arms, if they have no arms at all to
16 prepare.
17 When the President's decision is clear, then I will be in a
18 position to see how much time we will need to prepare, because the number
19 of people I will have will depend on that decision. Also, I will have to
20 increase the number of investigators out in the field. It all depends on
21 that, too.
22 JUDGE KWON: Okay. We'll leave it there. So I hope those
23 remuneration matters will be resolved as soon as possible and that --
24 THE ACCUSED: [Interpretation] Excellency, may I?
25 JUDGE KWON: Just a second. Yes, I will hear from you first.
Page 740
1 THE ACCUSED: [Interpretation] I was wondering whether this was
2 the right moment for me to file, in writing, a request for the Trial
3 Chamber to provide instructions for translating a book. I have been
4 asked to mark some paragraphs in that book that are needed to be
5 translated, but there's so many that it might as well be the entire book.
6 It is the diary of Professor Nikola Koljevic. From July 1993 onwards, he
7 wrote everything down. He is a participant and a witness.
8 Unfortunately, he passed away. But the book remains with us, and it is
9 an important source of knowledge and information.
10 I was told by the relevant service that it is only the Trial
11 Chamber that can ask for the translation of the entire book. Basically,
12 it does amount to almost the entire book, if I mark all the relevant
13 paragraphs. If the diary of the vice-president of Republika Srpska, who
14 was such an important participant, is not eligible for translation, then
15 I really don't know what else we'd need to translate.
16 JUDGE KWON: We cannot rule on it in a vacuum without
17 understanding what it is about, so I would like you to put into writing
18 and to file a motion, to which the Prosecution may wish to respond, and
19 the Chamber will issue its decision.
20 As to the resumption of trial, I wanted to make you sure that it
21 was the -- it is the Trial Chamber's position that this case was ready
22 for trial as of October or November of last year, and if there's a change
23 of circumstances that warrant further adjournment of the trial, that you
24 should put it into writing again and to file it in a motion.
25 Apart from those things, does either of the parties have any
Page 741
1 other issues that they wish to raise at this time?
2 Mr. Tieger.
3 MR. TIEGER: No, Your Honour. Thank you very much.
4 JUDGE KWON: Thank you. Mr. Karadzic?
5 THE ACCUSED: [Interpretation] I would just like to raise the
6 question of ICMP material. There is 5.500 something DNA samples. We are
7 in the process of making samples, but we're asking for the entire base to
8 be submitted to us. And the only impediment was the question of
9 confidentiality -- rather, the question of names. It's the families who
10 could challenge that.
11 We are prepared to receive the material without any names, but we
12 cannot make samples until we get the entire database with all the DNA
13 information we need and all the genetic material that we should look
14 into. It is over 300 -- over 300 variables, or, rather -- or, rather,
15 samples. So I'm afraid that this is going to be a major problem, even
16 more so because we have received some information to the effect that this
17 institute that the Prosecution relies on does not have many things that
18 they should have. However, the Defence is going to be very persistent in
19 this regard, that this Court should not act in a way which would not be
20 permissible in any other system. That is to say, this institute should
21 provide genetic material -- rather, all the findings so that we could do
22 what is up to us.
23 JUDGE KWON: So in this regard, what we are going to say is --
24 would be the same; that I would advise you to continue to work with the
25 ICMP, either directly or through the assistance of the Prosecution, to
Page 742
1 get the material on a voluntary basis, and at the end of the day, if
2 necessary, you file in the way of a motion. Then the Chamber will
3 consider the matter.
4 [Trial Chamber confers]
5 JUDGE KWON: If there is nothing further to raise at this
6 moment --
7 THE ACCUSED: [Interpretation] The Defence has nothing,
8 Mr. President.
9 JUDGE KWON: The hearing is now adjourned until 15th of February.
10 --- Whereupon the Status Conference adjourned
11 at 3.51 p.m.
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