060915SE

Page 1

1 Friday, 15 September 2006

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 8.00 a.m.

6 JUDGE AGIUS: Good morning, Madam Registrar. Could you kindly

7 call the case, please.

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

9 IT-05-88/1-PT, the Prosecutor versus Milorad Trbic.

10 JUDGE AGIUS: I thank you, ma'am.

11 Mr. Trbic, can you follow the proceedings in your own language?

12 THE ACCUSED: [Interpretation] [No interpretation]

13 JUDGE AGIUS: I think we have the first problem of the day.

14 THE ACCUSED: My English.

15 JUDGE AGIUS: He should have it in, I don't know what channel,

16 Serbo-Croat channel. I'll repeat what I said again. Can you follow the

17 proceedings in your own language?

18 THE ACCUSED: [Interpretation] [No interpretation]

19 JUDGE AGIUS: I thank you so much Mr. Trbic. And good morning to

20 you. Appearances for the Prosecution.

21 MR. McCLOSKEY: Good morning, Mr. President. Peter McCloskey with

22 Lada Soljan and Janet Stewart.

23 JUDGE AGIUS: I thank you. And good morning to you and your team.

24 Appearances for the Defence.

25 MR. PILETTA-ZANIN: [Interpretation] Good morning, Your Honour.

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1 Stephane Piletta-Zanin for the Defence.

2 JUDGE AGIUS: Now, the second problem. I am hearing

3 interpretation in English but also in Serbo-Croat, one after the other.

4 That would double the length of the proceedings.

5 So this is the first time we come face to face, Mr. Piletta-Zanin.

6 Please allow me to extend to you a very warm, warm welcome.

7 MR. PILETTA-ZANIN: [Interpretation] Your Honour, I can only thank

8 you for your greetings, all the more so since it is very likely that it's

9 going to be for a very short time. I thank you nevertheless.

10 JUDGE AGIUS: I thank you, Mr. Piletta-Zanin. Perhaps you can

11 explain that in due course.

12 Not simply for formalities' sake but also for the record, may I

13 just point out that this is the first status conference that is being held

14 following the decision on severance. It is within the 120-day limit

15 prescribed by Rule 65 bis. The purpose of status conferences is twofold.

16 Basically, even more than that, namely to organise exchanges between the

17 parties with a view to ensuring an expeditious preparation for trial, and

18 secondly, to allow the accused to raise issues in relation to his mental

19 and physical condition.

20 Some days ago, or a couple of weeks ago, I gave instructions to

21 Senior Legal Officer of Trial Chamber II to convene a 65 ter meeting

22 between the parties with a view to preparing the agenda for this status

23 conference. I will go straight to the first item on the agenda and that

24 is outstanding motions. There are as such no outstanding motions pending

25 before this Tribunal -- sorry, before this Trial Chamber, but there is a

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1 major motion pending before the 11 bis Referral Bench. This was filed on

2 the 4th of May 2006 by the Prosecution. And on the 10th of May, it was

3 referred to the Referral Bench, the motion is still pending before that

4 Bench for reasons that I suppose are -- not I suppose, I'm sure you're

5 both aware of.

6 There is also of course pending before the Appeals Chamber the

7 appeal that was filed by the accused following our decision on severance.

8 That -- those proceedings, he's contesting the decision of Trial Chamber

9 II, and I will -- unless I hear any comments arising of that, but I don't

10 imagine there would be any, I move to the second item on the agenda, which

11 deals with disclosure matters, and as you know, usually deal under this

12 heading or deal with this subject under two separate headings, one

13 disclosure under Rule 66(A)(i) and (A)(ii) and the other under Rule 68.

14 I'll go straight to the point. I know this was discussed thoroughly

15 yesterday during the 65 ter meeting and the report I got back from the

16 Senior Legal Officer is clear but not clear enough. In other words, there

17 seems to be something that needed more or something that would require

18 more information.

19 I'm informed that yesterday, he was not really put in a position

20 where he could report to me that disclosure under Rule 66(A)(i) and Rule

21 66(A)(ii) had been completed. It's not that it has not been completed but

22 we still require to know whether it has been completed. Neither you nor

23 the Defence could provide Mr. Cubbon with a straightforward, 100 per cent

24 correct answer. So if you can -- I'll go back on this subject and I will

25 ask Prosecution first to maybe enlighten us on the position now. Mr.

Page 4

1 McCloskey?

2 MR. McCLOSKEY: It's my understanding, Mr. President, that

3 66(A)(i) was completed 29 June, 2005 and 66(A)(ii) is practically

4 completed but it's a bit of an ongoing process as well.

5 JUDGE AGIUS: All right. And do you have a date in sight when you

6 would think that you would complete disclosure under this second

7 provision?

8 MR. McCLOSKEY: As the case that we -- that we are aware of now, I

9 can't think of any more witnesses but there may be witnesses of a health

10 nature or things like that that may come up, but as far as I know, we've

11 finished it for the time being until we get perhaps a little more clarity

12 on where we are going with the case.

13 JUDGE AGIUS: I thank you, Mr. McCloskey.

14 Mr. Piletta-Zanin?

15 MR. PILETTA-ZANIN: [Interpretation] Thank you, Your Honour. In

16 this respect I'd like to make two observations. Firstly, as I pointed out

17 yesterday, in the light of the urgency as I was assigned counsel in this

18 case, I was not able to check point by point whether the case file I was

19 given in a very excellent way by the previous counsel of Mr. Trbic matches

20 in all points the disclosure made by the Prosecution. I think it would

21 have been useless for me to do that. My premise was that the dossier, the

22 file was okay.

23 Secondly there is a more fundamental problem. There are for

24 instance some medical expert reports, the latest one being of the 28th of

25 August 2006, and initially, they had been done in Croatian, I believe,

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1 apparently these expert reports were only conveyed to my client yesterday,

2 so that -- and I saw him yesterday. I was not able to discuss this

3 thoroughly with him and the purpose of disclosure is, after all, in my

4 view, to enable the accused to know what it is all about. So there is a

5 basic problem here on the merits because it is in my view inadmissible

6 that the administration, which at a stage of it is concerned, discloses

7 such evidence only a few minutes before a client meets his lawyer and a

8 few hours before such a hearing as this. This is in my view inadmissible.

9 JUDGE AGIUS: One point that I want to follow up from what you've

10 just stated, Mr. Piletta-Zanin. You said there are for instance some

11 medical expert reports, the latest one being of the 28th of August of this

12 year, and initially they had been done in Croatian. Did I have the

13 correct interpretation or is there something wrong?

14 MR. PILETTA-ZANIN: [Interpretation] [Microphone not activated]

15 JUDGE AGIUS: Microphone.

16 MR. PILETTA-ZANIN: [Interpretation] Yes indeed. Your

17 interpretation was right because these reports were drafted initially in

18 Croatian, in the Croatian language. What I mean by this, Your Honour, is

19 that we don't even have the excuse of translation from English into B/C/S,

20 because initially -- originally, the reports were written in B/C/S or,

21 rather, in Croatian to be more exact. So I fail to understand why this

22 would be such a delay. Was I clear enough this time? I know -- I used

23 not to be, you know. I never am clear.

24 JUDGE AGIUS: I think I know what you're saying. These are

25 probably the reports, medical reports, that have not yet been handed over

Page 6

1 by the detention unit authorities and then they were handed over. Are

2 these the reports? Or are you referring to the report of the psychiatrist

3 appointed by the Prosecutor?

4 MR. PILETTA-ZANIN: [Interpretation] Precisely I have in mind those

5 two reports which are basically only one. I think they are dated the 28th

6 of August 2006. I'm not quite sure but I believe it is the date and they

7 were originally drafted in B/C/S and they were physically handed over to

8 my client only on the 14th.

9 JUDGE AGIUS: Do you have any comments on that, Mr. McCloskey?

10 What was the nationality of the psychiatrist?

11 MR. McCLOSKEY: Croatian.

12 JUDGE AGIUS: Croatian.

13 MR. McCLOSKEY: Yes, Mr. President, we received her report in a

14 very expedited fashion on the 31st of August. We filed it with the

15 Registry September 1st. They should have sent it as they normally do

16 electronically to Defence counsel. It's shortly thereafter. We don't, as

17 you know, provide material such as this directly to the accused. That

18 would be inappropriate. We have asked for it to be translated into

19 English. This is the situation where we have the language of the accused

20 so --

21 JUDGE AGIUS: I know because to my knowledge there isn't much

22 difference between Serbian and Croat, I've had a full two hour explanation

23 about the difference between the two languages in the past so I know a

24 little bit about it, but any way, let's cut this short. This is

25 fundamental. It's a right that the accused has. What I'm going to do is

Page 7

1 I am going to establish time limit, fix a time limit, of two weeks from

2 now during which you do a little bit your homework to find out whether

3 there are any further -- there is any further material that needs to be

4 disclosed under 65(A)(ii). You will by the end of this two-week period

5 file a declaration stating what your conclusion is or what your findings

6 are, and then I'll establish a further date by which you will be needed to

7 complete your disclosure. Is two weeks sufficient for you, Mr. McCloskey?

8 MR. McCLOSKEY: Mr. President, as I've been able to focus a little

9 more on this situation in the last night and this morning, I can tell you

10 now, as far as we know, we have -- I don't have at this point any more

11 witnesses.

12 JUDGE AGIUS: Statements?

13 MR. McCLOSKEY: Or statements to provide. As you can see, it says

14 copies of all written statements taken in accordance with 92 bis, and we

15 plan to follow up with this accused just like we will follow up in the

16 other case and we now have our marching orders on that, so we will

17 continue to follow. So we are following the previous order. We are

18 treating this accused as we are with the others. So we are up to date as

19 far as we know now.

20 JUDGE AGIUS: All right. So I take it that except for the

21 material related to the issue, the only issue that is still pending before

22 this Trial Chamber for the time being, rest has been disclosed already.

23 MR. McCLOSKEY: Yes, Mr. President. I'm confident we are in good

24 shape.

25 JUDGE AGIUS: And the rest will be an ongoing process as we

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1 proceed along the line.

2 MR. McCLOSKEY: Yes.

3 JUDGE AGIUS: Yes, Mr. Piletta-Zanin?

4 MR. PILETTA-ZANIN: [Interpretation] Just one thing. Thank you,

5 Your Honour. You tell the Prosecution to do their homework very well. In

6 that respect, could they not check one thing, in the interest of Mr.

7 Trbic, that this whole disclosure process be efficient, in other words,

8 that they make sure that documents be disclosed in Serbian or Croatian

9 because otherwise it's not of any use to our client. OLAD denied me the

10 right of having a series of potential co-counsel so that I do not have any

11 full time assistant in my team, unlike the Prosecution team, my team

12 doesn't have anybody who is conversant in Serbian or Croatian so this had

13 better be checked in the interest of the accused. Thank you.

14 JUDGE AGIUS: All right. Thank you. Prosecution knows exactly

15 which documents are required by law to disclose in the language of the

16 accused. If there are any shortcomings in that respect, you will of

17 course attract the wrath of the Trial Chamber.

18 So please do it and to that make sure that what has been disclosed

19 has been disclosed according to the law. Not everything needs according

20 to our Rules to be disclosed in the language of the accused.

21 The other type of disclosure relates to Rule 68. I take it from

22 what has been reported to me by Mr. Cubbon that you, Mr. Piletta-Zanin,

23 confirmed having received a CD from the Prosecution purportedly to contain

24 Rule 68 exculpatory material. I just want to confirm whether there is

25 anything else the Prosecution would like to add in respect to this type of

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1 disclosure.

2 MR. McCLOSKEY: No, Your Honour. We are up to date, and as you

3 said, we are being assisted in our obligations by seven other Defence

4 counsel that are keeping us on our toes, and I could -- it would be of

5 great assistance in meeting our Rule 68 obligation if Mr. Trbic has

6 anything in particular that he views as exculpatory or even generally to

7 tell us. That way we can do the searching and we can get material like

8 that to him as we have stated to all the other accused.

9 JUDGE AGIUS: Okay. I thank you. There is one further matter

10 that I would like to raise before we go into more delicate matters, and

11 that is following a decision that we -- when I say we, it's Trial Chamber

12 II, in sitting -- in presiding over the Popovic case. Upon the severance,

13 we had also ordered that a new indictment be drawn up in respect to Mr.

14 Trbic. What I want to confirm is that the indictment that I have

15 received, at least in English, has been translated and provided and

16 forwarded to the accused. In other words, whether he has received the

17 indictment now in his own language. Perhaps -- I don't know whether you

18 are in a position to confirm that, Mr. Piletta-Zanin.

19 MR. PILETTA-ZANIN: [Interpretation] I can confirm that I did not

20 receive it in French, Your Honour, but that's not the question you put. I

21 will confess that we did not look into this question yesterday, Mr. Trbic

22 and I, but I believe that in the meeting, in the 65 ter meeting, it

23 appeared that either it was being served or Mr. Trbic had just received it

24 and he would say otherwise if it were the case.

25 JUDGE AGIUS: So Mr. Trbic, I just want a statement from you in