1 Friday, 1 March, 2002

2 [Status Conference]

3 [Open session]

4 --- Upon commencing at 5.43 p.m.

5 JUDGE MUMBA: Yes. We are now in a Status Conference.

6 We just want to look at the progress and review the status of the

7 case and also discuss the facilities for Mr. Milan Simic.

8 I'll start with the Prosecution.

9 MR. DI FAZIO: Yes. If Your Honours --

10 JUDGE MUMBA: After this witness, how many more witnesses?

11 MR. DI FAZIO: Yes. My calculation is that we have 31 witnesses

12 remaining. Of those witnesses, one is Ewa Tabeau, who is in the nature of

13 an expert, demographics expert. And two of them are witnesses who will

14 give evidence on the issue of international armed conflict. The remainder

15 are all fact witnesses, describing events in and around the municipality.

16 Thus far, we have completed, I believe, about -- yes, 15

17 witnesses. So we're about a third of the way through our case.

18 JUDGE MUMBA: It appears we have a long way to go.

19 MR. DI FAZIO: It does. I regret to say, but --

20 JUDGE MUMBA: Yes. Because the remaining days we can only sit

21 either mornings or afternoon, which diminishes the sitting hours.

22 MR. DI FAZIO: If it's any consolation to the Chamber and to my

23 learned friends, and to us, of course, I think the issues are slowly

24 narrowing down. And as we get into the case further, I think the

25 witnesses hopefully will become shorter and shorter as we focus more and

1 more on the more crucial issues.

2 JUDGE MUMBA: Yes. Because I was just about to say that narrowing

3 down on the issues and also looking at where you think the vacuums may be

4 and filling in --

5 MR. DI FAZIO: Yes. The Prosecution is acutely aware of that.

6 We're well aware of the fact that the Chamber wants us to do whatever

7 possible to limit the evidence. And we are, I think, using our best

8 efforts to just get out the essential stuff out of each witness.

9 Unfortunately, that can't really --

10 JUDGE MUMBA: No. We --

11 MR. DI FAZIO: -- do a dramatic short of shortening --

12 JUDGE MUMBA: The Trial Chamber doesn't want to put undue

13 pressure, because we are aware of the problems we've had in this case and

14 the fact that it's actually four trials in one going on at the same time.

15 MR. DI FAZIO: Not only that, if Your Honours please, not only

16 that, but it's the sort of case that involves evidence of events over

17 months.

18 JUDGE MUMBA: Yes.

19 MR. DI FAZIO: It's not one particular shooting. It's not a

20 camp. Just because of that, it's just, of necessary, the witnesses have

21 to give lengthier evidence.

22 JUDGE MUMBA: Yes.

23 Now I turn to the Defence counsel for Mr. Milan Simic. I wanted

24 to find out how far -- so far how are the facilities of the videolink.

25 MS. BAEN: Your Honour, as far as the video set-up, everything is

1 fine. Our client says that he can see everything fine and he can hear

2 everything. And that's great. There is just one slight problem. We're

3 having a problem with the communication on the phone. We can call him, no

4 problem, but he informed us today that he's having a hard time reaching us

5 when he wants to reach us. He has reached us in the last couple of days,

6 but there have been times he says when he can't get a hold of us when he

7 needs to. So I'm sure that's not going to be a huge problem. We can iron

8 all that out. But right now it is a problem.

9 JUDGE MUMBA: All right. Maybe -- I'm not sure how -- whether

10 there is somebody from the technical unit at the Detention Unit to help

11 him with getting through the line. But I think that will be taken up by

12 the Registrar's Office, the people who are making these arrangements,

13 because that is important that he should be able to communicate with

14 counsel.

15 MS. BAEN: Exactly.

16 JUDGE MUMBA: Yes. Because if the facilities are fine, he's able

17 to follow the proceedings -- he's able to follow the proceedings, he can

18 see who the witnesses are and get information on their identity, then it

19 wouldn't be that necessary for him to come into the courtroom whenever he

20 feels like not sitting in his wheelchair for too long.

21 MS. BAEN: Well, I knew we were going to address this issue. And

22 I -- I think the whole object here is nobody wants to be here in this

23 trial longer than we have to be. In fact, I wish this trial would have

24 been over last December. But I know that we're starting increased hours

25 next Monday, till 7.00. And that's no problem, obviously, if my client is

1 in the jail, lying down, watching the trial. That's not problem. But

2 there are -- there are going to be maybe a couple of witnesses for the

3 Prosecution where he is going to want to be here in the courtroom. And so

4 I don't want in any way to suggest to the Chamber that this videolink is a

5 substitute for his presence here in the courtroom. It is a matter of

6 convenience, which we really appreciate, and it's going to allow us to

7 have this trial go a lot faster, I think. We'll get that extra hour. But

8 I know that under Article 21 of the Statute, he's entitled to be present

9 here in the courtroom. And so I don't want to in any way say that it's a

10 substitute for him being present here.

11 JUDGE MUMBA: No. It's a question of him, if he is unwell and

12 he's in the Detention Unit, he's able to follow the proceedings, because

13 that is important.

14 MS. BAEN: Exactly. I think we are all on the same page, then.

15 JUDGE MUMBA: Yes. So once the telephone problem is sorted out,

16 then there should be an improvement.

17 MS. BAEN: And I do want to say this. We, our team, really

18 appreciates all the efforts that have gone to help us in that regard.

19 JUDGE MUMBA: Yes. Because what is important on the part of the

20 people running the -- operating the videolink is that they would like to

21 be informed, at the latest, a day in advance, so it is important that you

22 keep a close communication with your client and you also observe the type

23 of witnesses who are coming so that you can give him advice correctly as

24 to whether or not he can take a decision on being in the courtroom and not

25 being in the Detention Unit. Because there is also the transport unit who

1 also need advance notice.

2 MS. BAEN: Your Honour, as long as we keep having a week's notice

3 on the order of witnesses, we can give a couple of days notice to

4 everybody who needs to know whether or not he wants to be here. But this

5 does raise another issue, actually, and it's not so much our problem as it

6 is the Prosecution's problem. And today with this witness, I think this

7 witness is going to testify about our client, and the Prosecution is --

8 we've got to come up with some solution. If they want identification

9 evidence regarding our client, they're going to have to come up with some

10 solution. And we're happy to work with them. As a matter of fact, for

11 the last witness, Mrs. Delic, we waived any identification issues. I

12 haven't had a chance to discuss this witness, whether or not our client

13 will waive that. I don't know -- that's just going to be a problem

14 because this is a weird -- this is a strange situation.

15 JUDGE MUMBA: Yes. It's a criminal trial, yes, and we have to be

16 aware of the rights of accused. It's just that with the facilities being

17 provided, then there shouldn't be that much pressure on Mr. Milan Simic.

18 Because what I'm trying to avoid is a total breakdown of his health,

19 because that will mean adjourning the proceedings.

20 MS. BAEN: He isn't -- his health isn't very good, but actually,

21 it's remaining more stable now that he's able --

22 JUDGE MUMBA: He's able to rest, yes.

23 MS. BAEN: Yes. But what I'm talking about right now is a

24 different issue about the Prosecution's problem which I can find out

25 whether or not he's going to waive that evidence for this witness on

1 Monday. But it might be a continuing problem. If there are a few more

2 witnesses dealing with the primary school or whatever, we need to address

3 that legally. I don't know if they want to think about some kind of photo

4 spread, if he doesn't weigh that issue or not. But I just want to let

5 everybody know we are willing to discuss anything to make this trial go

6 faster and not have any problems.

7 JUDGE MUMBA: That will be very helpful. That will be very

8 helpful.

9 And the Trial Chamber would like to thank the Registrar's Office

10 and the Deputy Registrar's Office for these facilities because they're

11 really gone a long way in assisting us to get through with our trial.

12 Yes. For Monday, the hours will change. We shall be sitting up

13 to 19.00, like the programme which has been issued. And we have also

14 issued a table of the UN holidays when the Chamber will not be sitting,

15 because the programme simply shows as if we are sitting on all the days.

16 But on those UN holidays, the Chamber will not be sitting. So were going

17 to --

18 Yes, Mr. Pantelic.

19 MR. PANTELIC: Your Honour, if I may -- well, allow me to say,

20 even within this high-tech institution there are sometimes problem with

21 telephone lines, what we can say for Samac in wartime. But anyhow,

22 something which my learned friend Mr. Di Fazio just stated was not so

23 clear for me. In fact, we have a close --

24 JUDGE MUMBA: Yes.

25 MR. PANTELIC: In fact, we have a close list of witnesses to my

1 evidence, including Mr. Delicic and Ms. Tabeau, the other --

2 JUDGE MUMBA: Yes. What was not clear to you?

3 MR. PANTELIC: I don't see particular names on this list for

4 witnesses for international armed conflict. Maybe my learned friend can

5 clarify that. Who are the witnesses? Maybe they are here. I'm a little

6 bit confused about this submission.

7 JUDGE MUMBA: All right.

8 MR. PANTELIC: Thank you so much.

9 JUDGE MUMBA: I'm sure that can be clarified between the parties

10 by the Prosecution merely indicating which witness is discussing what.

11 But the Trial Chamber is aware that summaries were given to the Defence

12 counsel, but sometimes maybe you just need more details about what type of

13 witness.

14 MR. PANTELIC: Yes, Your Honour. But I'm speaking -- yeah, I'm

15 speaking about the list provided by the Prosecution --

16 JUDGE MUMBA: For next week?

17 MR. PANTELIC: Prior to trial. Generally.

18 JUDGE MUMBA: Oh, I see.

19 MR. PANTELIC: And I'm a little bit lost in this --

20 JUDGE MUMBA: All right.

21 MR. PANTELIC: -- document. But okay. I appreciate your

22 suggestion. Of course we can -- we can communicate by -- between us. And

23 if we would have enough time, maybe a couple of minutes, maybe I can raise

24 another issue at the discretion of this Trial Chamber, of course.

25 JUDGE MUMBA: All right. Ms. Reidy.

1 MS. REIDY: I think it would just be helpful also for the Trial

2 Chamber to know that the two witnesses Mr. Di Fazio referred to as the

3 international armed conflict witnesses are those whose testimony was

4 admitted pursuant to a 92 bis motion. Their evidence was admitted by the

5 Pre-Trial Chamber subject to cross-examination. And it's that context --

6 that's what we meant. So they're not on the summaries, but they're those

7 two -- those two witnesses.

8 JUDGE MUMBA: All right.

9 MR. PANTELIC: Yes, thank you. Now I remember, because there was

10 a hearing about the witnesses. I think one is a former colonel of JNA and

11 -- yes, I know now.

12 Thank you so much, Ms. Reidy.

13 And if you allow me, Your Honours.

14 JUDGE MUMBA: Yes, Mr. Pantelic.

15 MR. PANTELIC: Well, you know, there is one practice which is not

16 so clear for the Defence, I mean, a practice from the side of

17 Prosecution. I will give you an example, and I would be very glad if our

18 learned friends can clarify that. Just for the record, I have to say that

19 on the 18th February 2002, the Prosecution submitted to the Defence a

20 transcript with Mr. Stevan Todorovic -- transcript of his interview, which

21 was -- which took place on 30 July 2001. So from July 2001 until the

22 February 2002, the Prosecutor was in possession of this particular

23 interview. As a matter of principle, I think that this practice should

24 not be allowed in future. And furthermore, I think officially move this

25 Honourable Trial Chamber to strike out this evidence because they were in

1 possession well prior to trial, the beginning of the trial.

2 And another thing: On the 18th of February this year, our

3 colleagues from Prosecution gave us sort of -- they called it proofing

4 notes or something like that, an extended version of the -- of the

5 interview with Mr. Stevan Todorovic. And when I asked my learned friend

6 Mr. Di Fazio to inform me where and when this proofing notes were made, on

7 which occasions, still up to now we don't have these answers. So maybe my

8 learned friend Mr. Di Fazio can, for the record, inform Defence and this

9 Trial Chamber when and where, on which occasion, these proofing notes were

10 made, because it is very important for the Defence in order to check

11 certain details, to arrange defence, and stuff like that. And also maybe

12 he can give us an explanation why he gave to the Defence this transcript

13 of 30 of July last year only in February this year. Thank you so much.

14 JUDGE MUMBA: First of all, on the transcript of Mr. Todorovic

15 given to the Defence on 18 February, there is nothing the Trial Chamber

16 can strike out because it hasn't yet been offered as evidence. So those

17 are simply documents which the parties are exchanging in preparation -- in

18 the event that --

19 MR. PANTELIC: Your Honours, if I may, that is the main issue. I'm

20 not speaking whether this evidence will be tendered or proved or whatever.

21 I'm speaking about the manner of the other side.

22 JUDGE MUMBA: Yes, yes.

23 MR. PANTELIC: Which means that -- you can understand. If I

24 would be as a Defence in position to have this, for example, interview

25 prior to the beginning of trial, maybe I can use that during the

1 cross-examination of the -- all witnesses that came. And my -- my basic

2 concern is about the possible jeopardising of the principle of fairness in

3 this trial. That, I am speaking. I'm not speaking about the contents of

4 this interview and stuff like that.

5 JUDGE MUMBA: Yes. Yeah, you --

6 MR. PANTELIC: That was my bottom line of my submission --

7 JUDGE MUMBA: I understand your complaint, and I'll ask the

8 Prosecution to explain.

9 MR. DI FAZIO: With pleasure, Your Honour -- Your Honours.

10 First of all, the interview in July of last year. Mr. Pantelic is

11 correct that it was disclosed to the Defence late. I think I should take

12 the fault for that. I was one of the parties involved in that particular

13 interview, and I failed to chase up its translation and the obtaining of

14 the transcript. And Ms. Reidy, in fact, solved that problem, brought the

15 matter to my attention that it had been overlooked. And it was disclosed,

16 as Mr. Pantelic says, in January of this year. That is an isolated

17 example, and there is absolutely no practice whatsoever of the Prosecution

18 concealing or failing to disclose relevant material or being tardy in

19 disclosing relative material. In fact, the practice is quite the

20 contrary. So he is referring to a isolated example.

21 Secondly, what Mr. Pantelic didn't say to the Chamber is the

22 reason why he should raise this issue at all. What is the consequence

23 that has befallen the Defence? What's the problem that's occurred? Have

24 they not had enough time to digest the material since the 18th of

25 January? Knowing that Mr. Todorovic is not going to be giving his

1 evidence for quite a long period of time, I am truly puzzled as to what

2 consequence has befallen the -- the Prosecution. They didn't -- they

3 didn't say or point to any particular consequence that results from this.

4 So in fact, it's a complaint of the Prosecution not crossing its T's and

5 dotting its I's and that complaint is not well-founded in the

6 Prosecution's submission. And it's not for Mr. Pantelic to admonish or

7 discipline the Prosecution. That is a matter that remains fairly and

8 squarely with the Trial Chamber.

9 Having said that, however, nothing could be further from the truth

10 in terms of being tardy. It is entirely an isolated example. It's a

11 matter that I regret. And as soon as we became aware that we hadn't in

12 fact disclosed the material to them, it was done so.

13 JUDGE MUMBA: Does that mean that -- I may be mistaken, but if I

14 remember at the opening of the trial, the Prosecution appeared to be

15 saying that they hadn't made up their mind as to whether or not they were

16 going to call Stevan Todorovic. Does this now mean that you are going to

17 call him as a Prosecution witness?

18 MR. DI FAZIO: Does the Chamber insist on my answering that

19 question at the moment?

20 JUDGE MUMBA: Yes, because of the complaint raised by

21 Mr. Pantelic.

22 MR. DI FAZIO: May I just confer a moment with my colleague?

23 [Prosecution counsel confer]

24 MR. PANTELIC: In the meantime, as matter of clarification, Your

25 Honours, I said "18 of February," and my learned friend said "18 of

1 January." I have a receipt of 18 of February --

2 MR. DI FAZIO: I don't quibble. February, February. That's

3 fine. February.

4 JUDGE MUMBA: I think that was the correct date when the document

5 was given to Mr. Pantelic. All right.

6 MR. DI FAZIO: He remains on our witness list and is expected to

7 be called as a witness.

8 JUDGE MUMBA: All right.

9 MR. DI FAZIO: Now, the other issue that was raised --

10 JUDGE MUMBA: If -- we should give a reasonable time. He should

11 be called towards the end of the case to give enough time to the Defence,

12 since they've said that they've just got the documents in February this

13 year.

14 MR. DI FAZIO: Mr. Pantelic well knows that weeks will pass, if

15 not months, before Todorovic is called.

16 JUDGE MUMBA: And I think the point Mr. Pantelic made is also

17 important that matters in those documents may be important for the Defence

18 to have raised with the other Prosecution witnesses, which is actually

19 allowed in cross-examination.

20 MR. DI FAZIO: Certainly. Certainly. So let's hear what it is,

21 if there is a complaint. I mean, that's what he --

22 JUDGE MUMBA: No, no. He said so. And I would like the

23 Prosecution to bear that in mind.

24 MR. DI FAZIO: I do bear that in mind. I'm trying to make that

25 point, if Your Honour pleases. I'm well aware of the fact that we should

1 have disclosed the material at an earlier point. I don't seek to hide

2 from that or escape that fact. It's regrettable that it was disclosed on

3 the 18th of February. The point the Prosecution makes is okay, that's

4 happened and it's regrettable, but what's the consequence? Now, if Mr.

5 Pantelic can say, "We've lost -- there was a gem of evidence in that

6 interview. The witnesses have disappeared. Our case has been damaged in

7 some way," then let's hear it. But nothing has been said to that effect.

8 JUDGE MUMBA: All right. Yes. Maybe after he has digested the

9 contents of the documents, he will be able to point out that. But still,

10 that doesn't diminish his complaint, the value of his complaint.

11 MR. DI FAZIO: I don't -- I don't suggest that it's a desirable

12 matter or that it's a trifling matter. I'm not trying to escape that.

13 And I fully accept that it's a matter that the Prosecution needs to attend

14 to. But it's one interview, and I think there are at least five

15 conducted. It's -- in terms of its length, it pales into insignificance

16 compared to the other recorded interviews. And furthermore, it is utterly

17 and totally diminished in terms of significance by the volume of material

18 that I've given the Defence in the proofing notes as well.

19 The volume of material, the factual material, the amount of facts,

20 the detail that is contained in the recorded interviews that were

21 disclosed quite a considerable period of time ago, and the same material

22 in the -- in the proofing notes that I have provided to the Defence - I'm

23 at a loss for words - absolutely is just a mountain of information and

24 material compared to this thin volume of a few pages from July. It was a

25 short, short interview with Mr. Todorovic. And that's the important

1 thing, I think, that the Chamber should understand.

2 JUDGE MUMBA: All right.

3 MR. DI FAZIO: In terms of information, they've got a lot more

4 from those recorded interviews and from that proofing notes than they got

5 from that July interview.

6 JUDGE MUMBA: All right. Thank you.

7 Yes, Mr. Pantelic.

8 MR. PANTELIC: Your Honours, very shortly. Well, we don't have to

9 see some kind of approach with the pussy foots around here. I was very --

10 first of all, I'm very glad to prepare a short analysis what is the impact

11 of this particular interview in terms of preparation of defence, in terms

12 of the, I would say, interaction with the other witnesses here and stuff

13 like that. So Defence will prepare that accordingly from this --

14 JUDGE MUMBA: Yes. Provided you bear in mind that the practice of

15 the Tribunal is that where disclosure is at any stage during the trial,

16 reasonable time should be given to the Defence before that particular

17 witness is called.

18 MR. PANTELIC: Absolutely, Your Honour.

19 JUDGE MUMBA: Yes.

20 MR. PANTELIC: As I said --

21 JUDGE MUMBA: You've already said what you intend to do. Can we

22 move on to the documents which we were supposed to receive from

23 Mr. Lazarevic?

24 MR. PANTELIC: Yes, thank you.

25 JUDGE MUMBA: Let me ask the registry assistant. Have they been

1 properly titled? That was D11/4, D12/4, D13/4, the English translations.

2 Mr. Lazarevic, yes.

3 MR. LAZAREVIC: Yes, I think so. First is D11/4. These are

4 portions of the constitution of the Socialist Federal Republic of

5 Yugoslavia, English translation.

6 JUDGE MUMBA: Yes.

7 Can we just have confirmations of the numbers that -- yes.

8 Can we move fast, because we are really keeping the interpreters

9 beyond their hours.

10 THE REGISTRAR: Yes. I would like to give confirmation that these

11 exhibits, D11/4, D12/4, and D13/4 in the English translation.

12 JUDGE MUMBA: Thank you. And the Prosecution did say they have no

13 objection, so they are exhibits. Yes.

14 MR. LAZAREVIC: Now, the document D12/4 are portions of law of All

15 People's Defence.

16 JUDGE MUMBA: Yes. And D13/4?

17 MR. LAZAREVIC: D13 is an Official Gazette of the Socialist

18 Federal Republic of Yugoslavia, dated October 18, 1991, signed by

19 Dr. Branko Kostic, vice-president.

20 JUDGE MUMBA: Thank you.

21 Yes, I see Ms. Baen.

22 MS. BAEN: This is just a one-minute issue. And I think it might

23 be some good news as to shortening the trial. I was told that the

24 Prosecution had been requested to do -- to call most of the witnesses that

25 dealt with the primary school at the beginning of this trial so we could

1 try to move things along and set up the videolink. There's only one

2 witness left in the indictment, [redacted], which has not testified

3 before the Tribunal yet. And in talking with Ms. Reidy, the last I spoke

4 about [redacted] with her, she said that he did not want to appear. And

5 so I would like to propose -- and I know that Rule 70 requires that I make

6 some sort of request to take a deposition, but that's something that we'd

7 like to do. If he's not planning on showing up, then I believe that we're

8 entitled to rely on their witness list. And we would like his testimony

9 presented. And it won't delay the trial. I will actually take one witness

10 off the list. And I can go, or my co-counsel can go, and take the

11 deposition and not delay the trial at all. We don't have to be here.

12 So that's just something I wanted to bounce off the Trial Chamber,

13 see what you think and see what they think.

14 JUDGE MUMBA: That is [redacted].

15 MS. BAEN: Yes, Your Honour.

16 JUDGE MUMBA: And you say the Prosecution are not calling him.

17 MS. BAEN: That's the last I heard. I don't know if that's the

18 status or not. That's just the last I heard.

19 JUDGE MUMBA: Ms. Reidy.

20 MS. REIDY: Your Honours, I would have appreciated just a little

21 bit of notice on this, because I would have asked that this go into closed

22 session because precisely one of the issues about this witness's

23 attendance has to do with the publicity surrounding his evidence.

24 JUDGE MUMBA: Okay.

25 MS. REIDY: So I would suggest that maybe we could pick it up

1 first thing on Monday, if you want, or I could put in a written filing

2 with he Tribunal, explaining the situation.

3 JUDGE MUMBA: All right. What I will say is you can discuss

4 whatever you can discuss as parties and then you come up with whatever you

5 have to come up to the Trial Chamber later -- after we have completed the

6 witness on the stand.

7 MS. REIDY: That's perfectly fine, Your Honour, yes.

8 MS. BAEN: That's fine. I just wanted to let you -- I did tell

9 Gramsci yesterday that I was going to discuss it, so I didn't mean to

10 ambush you or anything.

11 JUDGE MUMBA: All right. So the proceedings will adjourn until

12 Monday at 14.15 hours.

13 --- Whereupon the Status Conference

14 adjourned at 6.12 p.m.

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