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(1)Thursday, 25th November, 1999
[Further Appearance]
[Open session]

--- Upon commencing at 9.37 a.m.
(5) [The accused entered court]

JUDGE RODRIGUES: [Int.] Good morning. Good morning ladies and gentlemen. I believe that the interpreters can hear me. Good morning to the interpreters, to the technical staff. (10)Could we have the representatives, please, for the Office of the Prosecutor.

MR. HARMON: Good morning, Mr. President. Good morning Judge Riad, Judge Wald. My name is Mark Harmon. I'll be representing the Prosecutor's office (15)this morning, and I am assisted by my colleague seated to my right, Mr. Peter McCloskey. Thank you.

JUDGE RODRIGUES: [Int.] Thank you very much, Mr. Harmon. (20)Appearances for the Defence, please.

MR. VISNJIC: [Int.] Good morning, Mr. President. Good morning, Your Honours. My name is Tomislav Visnjic, and I will act as Defence counsel at the hearing today for Mr. Krstic.

(25) JUDGE RODRIGUES: [Int.] Thank you

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(1)very much. Mr. Registrar, would you give us the case number, please.

THE REGISTRAR: [Int.] This is case (5)IT-98-33-PT, the Prosecutor versus Radislav Krstic.

JUDGE RODRIGUES: [Int.] Thank you. As you see, we have a new composition of Judges in this Trial Chamber. The Trial Chamber is composed of Judge Fouad Riad to my right, Judge Wald to my left, and (10)myself as the Presiding Judge. I would like to take advantage of this opportunity to welcome Judge Wald and to tell her how pleased we are to have her working with us. I myself have the honour and responsibility of presiding over (15)this Trial Chamber. We are here today for the Initial Appearance of Mr. Krstic and we will, therefore, proceed in the following manner: Before we read out the indictment or begin with the Initial Appearance, I would first like (20)to confirm with the Prosecutor what I have seen of the amendments made to this indictment. I believe, Mr. Harmon, that the essential part of the amendments is the addition of Counts 7 and 8, that is, expulsions and inhumane acts, and then (25)there are several other small amendments. It seems to

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(1)me that these are amendments we already spoke about when we spoke about the former indictment. For instance, there are amendments in the wording. Instead of saying "the Drina Corps," one now says "the other (5)Drina Corps" or "military personnel" was changed to "military" alone. There is also the introduction of a new paragraph relating to the military structure of the VRS military forces. This is paragraph 14 to 14.15, and (10)after the introduction of that new paragraph, the numbering has been changed. There are a few clarifications which were added. For instance, the military VRS was explained as the Bratunac Brigade or a member of the Zvornik (15)Engineering Brigade, and several clarifications relating to temporal circumstances, for instance, in paragraphs 24.5 and 24.6. Mr. Harmon, is that it? Have I seen things correctly here?

(20) MR. HARMON: Mr. President, there are some additional changes that I can point out to the Court. This document constitutes a merger of the previous updated indictment, and Your Honour has correctly appointed out that the merger is principally (25)found in paragraph 14; however, there are some

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(1)additional changes which I would like to draw your attention to. For example, in paragraph 31, the indictment has been amended to add the sentence "e" in the crime (5)against humanity. There has been some additional changes that are found in various counts; that is, in the predicate paragraph to each of the counts where the Prosecutor realleges and reincorporates certain other paragraphs that are contained in the indictment, we (10)have been more inclusive than less inclusive, and we have changed, in small part, some of the other paragraphs that are referenced to support the particular counts. That constitutes essentially, Mr. President (15)and Your Honours, the amendments to this indictment.

JUDGE RODRIGUES: [Int.] Thank you, Mr. Harmon. I would like to turn to the Defence counsel, Mr. Visnjic. Did I pronounce your name correctly? (20)Visnjic, is it?

MR. VISNJIC: [Int.] Yes, Mr. President.

JUDGE RODRIGUES: [Int.] And ask you whether, within this framework, you feel that we should (25)read out the entire amended indictment or whether you

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(1)believe it is sufficient to read out the new counts and to ask Mr. Krstic whether he is pleading guilty or not guilty. What is your opinion, please?

(5) MR. VISNJIC: [Int.] Mr. President, I think that my client and I have agreed that only the amended counts be read. However, before that, I would like to raise a small point. Actually, it is of a formal nature and it consists of the following: (10)The accused and we, as the Defence, have been served a copy of the indictment in the English language and in the language of the accused, so he has understood it fully; however, we did not receive any decision on the confirmation of the indictment, in (15)keeping with Rule 47(F). I don't want the hearing today to be postponed in any way; I would just like the registrar to confirm this to us, whether this has been confirmed. Is that identical to the copy we received (20)on the 27th of October, 1999? And could we hear which Judge confirmed it and when. Thank you.

JUDGE RODRIGUES: [Int.] Mr. Registrar, could you answer that question?

(25) THE REGISTRAR: [Int.] Yes, Your

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(1)Honour. The indictment was confirmed but I don't have the date right with me, but as quickly as possible I'll be able to give you the date or give Mr. Visnjic the date.

(5) JUDGE RODRIGUES: [Int.] Mr. Prosecutor, were the amendments really confirmed by the Judge? Are you confirming what the registrar has just said that, in fact, the amendments were confirmed.

(10) MR. HARMON: Yes, we confirm that, Mr. President.

JUDGE RODRIGUES: [Int.] So, Mr. Visnjic, you will receive the decision. The registrar has already promised that he would give you (15)the decision which was submitted, and the indictment was confirmed in respect to its amendments. The registrar will give you the decision as soon as possible. Can we begin?

(20) MR. VISNJIC: [Int.] Mr. President, could the registrar please give us the name of the Reviewing Judge who confirmed the indictment? I don't have to go into all the reasons, but this would be a minimal requirement. So please could we have the (25)name?

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(1) JUDGE RODRIGUES: [Int.] Mr. Registrar, could you answer Mr. Visnjic's question, please?

THE REGISTRAR: [Int.] Yes, Your (5)Honour. It was Judge Mumba.

JUDGE RODRIGUES: [Int.] If I've understood you correctly, Mr. Visnjic, you agree to our reading out only the counts which represent additions and amendments to the indictment; is that correct?

(10) MR. VISNJIC: [Int.] That's correct, Your Honour.

JUDGE RODRIGUES: [Int.] We are going to really begin our proceedings, the formal proceedings of the initial appearance, and I will ask (15)Mr. Krstic to rise, please. Could you stand, please, Mr. Radislav Krstic. Could you give us your name, your first name and your last name, please?

THE ACCUSED: [Int.] Yes. I am (20)Radislav Krstic.

JUDGE RODRIGUES: [Int.] Would you like to state something?

MR. VISNJIC: [Int.] Mr. President, I would like to kindly ask you, would it be possible (25)for Mr. Krstic to answer these questions in a seated

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(1)position, because he's an invalid, disabled person. It's very difficult for him to stand on his feet.

JUDGE RODRIGUES: [Int.] Yes. Of course. Of course. Excuse me, Mr. Krstic. Mr. (5)Krstic, please be seated and then answer my questions. Excuse me.

THE ACCUSED: [Int.] Thank you very much.

JUDGE RODRIGUES: [Int.] Excuse me. (10)Let me repeat myself. Give us your names, please, your first and last name.

THE ACCUSED: [Int.] Yes. My name is Radislav Krstic.

JUDGE RODRIGUES: [Int.] Could we (15)have your date and place of birth, please?

THE ACCUSED: [Int.] I was born on the 15th of February, 1948 in the village of Nezerici near Vlasenica. It's in Bosnia-Herzegovina.

JUDGE RODRIGUES: [Int.] Your (20)profession and domicile before you came here?

THE ACCUSED: [Int.] I'm a professional soldier. I'm a member of the army of Republika Srpska. I lived in Sokolac in Bosnia-Herzegovina.

(25) JUDGE RODRIGUES: [Int.] Mr. Krstic,

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(1)who was your Defence counsel?

THE ACCUSED: [Int.] My Defence counsel is Mr. Nenad Petrusic and Mr. Visnjic.

JUDGE RODRIGUES: [Int.] Let me take (5)advantage of this opportunity to ask you a question about the detention conditions and your medical condition.

THE ACCUSED: [Int.] When I previously appeared in court on several occasions, I (10)talked about my health condition. The problems are the same. My condition is unchanged. I still have problems with my leg and all my other health problems. As for the conditions in the detention unit, they are the same as for all others. My cell has (15)somewhat been accommodated to meet my needs, my condition. I have no objections whatsoever to the conduct of the management of the detention unit.

JUDGE RODRIGUES: [Int.] The treatment -- were you given the treatment that you (20)needed, Mr. Krstic? Are you receiving the treatment that you need?

THE ACCUSED: [Int.] There is therapy but it is inadequate in terms of my condition; that is to say, that a limb was amputated. A prison (25)hospital does not accommodate the needs of a disabled

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(1)person of this nature. Before I came here, I was constantly under a different kind of therapy, which was far, far more efficient. That is how these subsequent problems came into beginning; for example, the phantom (5)pain which is sometimes unbearable.

JUDGE RODRIGUES: [Int.] Mr. Registrar, have measures been taken since the last Status Conference at the time that Mr. Krstic raised some questions, have measures been taken? Could you (10)answer -- in order to meet his needs?

THE REGISTRAR: [Int.] Yes, Mr. President. During the last Status Conference, the accused mentioned certain problems and the Registry made the necessary arrangements in order to respond to (15)his request.

JUDGE RODRIGUES: [Int.] Therefore, the Registry will continue to take care of his concerns.

THE REGISTRAR: [Int.] Yes, (20)Mr. President.

JUDGE RODRIGUES: [Int.] I must now recall the text of the Statute and of the Rules which govern the Initial Appearance. Would you read Rules 20 and 21 of the Statute, and 62 of the Rules, please.

(25) THE REGISTRAR: [Int.] Article 21,

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(1)"The Rights of the Accused." "1. All persons shall be equal before the International Tribunal. "2. In the determination of charges against (5)him, the accused shall be entitled to a fair and public hearing, subject to article 22 of the Statute. "3. The accused shall be presumed innocent until proved guilty according to the provisions of the present Statute. (10)"4. In the determination of any change against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality: (a) to be informed promptly and in detail in (15)a language which he understands of the nature and cause of the charge against him; (b) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; (20)(c) to be tried without undue delay; (d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal (25)assistance assigned to him, in any case where the

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(1)interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; (e) to examine, or have examined, the (5)witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (f) to have the free assistance of an interpreter if he cannot understand or speak the (10)language used in International Tribunal; (g) not to be compelled to testify against himself or to confess guilt. Article 20.3: The Trial Chamber shall read the indictment, (15)satisfy itself that the rights of the accused are respected, confirm that the accused understands the indictment, and instruct the accused to enter a plea. The Trial Chamber shall then set the date for trial. Rule 62 of the Rules of Procedure and (20)Evidence, "Initial Appearance of Accused." Upon transfer of an accused to the seat of the Tribunal, the President shall forthwith assign the case to a Trial Chamber. The accused shall be brought before that Trial Chamber without delay, and shall be (25)formally charged. The Trial Chamber shall:

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(1)(i) satisfy itself that the right of the accused to counsel is respected; (ii) read or have the indictment read to the accused in a language the accused speaks and (5)understands, and satisfy itself that the accused understands the indictment; (iii) inform the accuse that, within thirty days of the initial appearance, he or she will be called upon to enter a plea of guilty or not guilty on (10)each count, but that, should the accused so request, he or she may immediately enter a plea of guilty or not guilty on more than one count; (iv) if the accused fails to enter a plea at the initial or any further appearance, enter a plea of (15)not guilty on the accused's behalf; (v) in the case of a plea of not guilty, instruct the Registrar to set a date for trial; (vi) in the case of a plea of guilty, act in accordance with Rule 62 bis; (20)(vii) instruct the Registrar to set such other dates as appropriate.

JUDGE RODRIGUES: [Int.] Thank you very much, Mr. Registrar. Further to the provisions which have just (25)been read out, I will now ask the Defence, that is,

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(1)Mr. Visnjic, whether the amendments to the indictment were transmitted to Mr. Krstic and whether he understood the contents thereof.

MR. VISNJIC: [Int.] Mr. President, (5)the amendments have been conveyed to Mr. Krstic and he understood all the additional counts in the indictment.

JUDGE RODRIGUES: [Int.] Mr. Krstic, you may remain seated. Have you understood the (10)contents of the amended indictment and was it given to you in your own language?

THE ACCUSED: [Int.] Yes, I understood it and I received it in my language.

JUDGE RODRIGUES: [Int.] I will now (15)ask the registrar, with the agreement of the Defence, to read only Counts 7 and 8. Isn't that correct, Mr. Visnjic?

MR. VISNJIC: [Int.] Yes, Mr. President.

(20) JUDGE RODRIGUES: [Int.] Mr. Registrar, please.

THE REGISTRAR: [Int.] Counts 7 to 8 (Deportation, Inhumane Acts). The Prosecutor re-alleges and reincorporates (25)by reference paragraphs 4, 6, 7, 11, 24.1, 24.3, 24.4

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(1)through 24.6, 24.8, 24.9, and 24.11 above. Beginning on 11 July 1995 and continuing through 13 July 1995, Radislav Krstic committed, planned, instigated, ordered, or otherwise aided and (5)abetted the planning, preparation, or execution of a crime against humanity, that is, the deportation or forcible transfer of Bosnian Muslims from the Srebrenica enclave. By his respective acts and omissions (10)described in paragraphs 4, 6, 7, 11, 24.1, 24.3 through 24.6, 24.8, 24.9, and 24.11, Radislav Krstic committed: Count 7: Deportation, a crime against humanity, punishable under Article 5(d), and 7(1) and (15)7(3) of the Statute of the Tribunal. Alternatively, Count 8: Inhumane acts (forcible transfer), a crime against humanity, punishable under Article 5(i), and 7(1) and 7(3) of the Statute of the (20)Tribunal. Dated this 27th day of October, 1999, at The Hague, the Netherlands. Signed, the Prosecutor, Carla del Ponte.

JUDGE RODRIGUES: [Int.] Mr. Krstic, (25)in respect of Count 7, deportation, do you plead guilty

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(1)or not guilty?

THE ACCUSED: [Int.] Mr. President --

JUDGE RODRIGUES: [Int.] You may (5)remain seated when you answer.

THE ACCUSED: [Int.] I'm not guilty.

JUDGE RODRIGUES: [Int.] Count 8, inhumane acts, do you plead guilty or not guilty?

(10) THE ACCUSED: [Int.] Not guilty.

JUDGE RODRIGUES: [Int.] Mr. Registrar, you will note the plea of not guilty by Mr. Krstic. Just one moment, please. Excuse me, but I (15)realised that there was an amendment in Count 6, paragraph (e), that this is new. I may have to read out that new element, and even though it is a formality, I think we have to ask Mr. Krstic so that things are clear. (20)I will ask the registrar to read paragraph (e) of Count 6, that is, paragraph 29 and 31(e).

THE REGISTRAR: [Int.] Count 6 (Persecutions). The Prosecutor re-alleges and reincorporates (25)by reference paragraphs 4, 6, 7, 11, and 22 through 26

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(1)above. The crime of persecutions was perpetrated, executed, and carried out by or through the following means: (5)(e) the deportation or forcible transfer of Bosnian Muslims from the Srebrenica enclave.

JUDGE RODRIGUES: [Int.] Mr. Krstic, this is a new addition to the amended indictment. In respect of this element of Count 6, do you plead guilty (10)or not guilty to Count 6?

THE ACCUSED: [Int.] Not guilty.

JUDGE RODRIGUES: [Int.] Will you take note of this, Mr. Registrar, that is, the plea of not guilty to Count 6. (15)Mr. Harmon, do you have a question?

MR. HARMON: No, I don't, Mr. President, but for the sake of absolute clarity, all of the predicate paragraphs to all of the counts had minor amendments in that they incorporated other paragraphs that were (20)contained in the body of the indictment. So in a technical sense, there has been an amendment to each of the counts merely by reincorporating more of the paragraphs. So for the sake of clarity and transparency, I bring that to Your Honours' attention.

(25) JUDGE RODRIGUES: [Int.] What are

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(1)the counts that you are suggesting be read out?

MR. HARMON: Mr. President, there was a very small change in the predicate paragraph to Counts 1 and 2; similarly, to Count 3; similarly, to Counts 4 and (5)5.

JUDGE RODRIGUES: [Int.] But these are not substantial modifications, are they?

MR. HARMON: They are not. They essentially expand, if you will, the paragraphs that are identified (10)as supporting the particular counts. The Defence, Mr. President, has had in the previous indictment the paragraphs that are now referred to and incorporated into this new amended indictment. What we did was we identified paragraphs that had been inadvertently (15)omitted in the updated indictment; we captured them and incorporated them in the predicate paragraph now to each of the counts.

JUDGE RODRIGUES: [Int.] But the Defence agreed that these were not substantive changes, (20)and that's why we proceeded as we did; otherwise, we would have to read the entire indictment.

MR. HARMON: I'm completely satisfied, Mr. President, if the Defence is satisfied, to make that representation and accept those as not being (25)necessary to reread the whole indictment. I'm

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(1)satisfied to proceed on that basis.

JUDGE RODRIGUES: [Int.] Once the Defence agreed to this procedure, I would say that the essential amendments were read out, were considered, (5)and that includes the new counts, because there are some small amendments. But in any case, I would like to have everything to be clear and to ask Mr. Visnjic for his opinion.

MR. VISNJIC: [Int.] Mr. President, (10)I agree. We have no objections.

JUDGE RODRIGUES: [Int.] All right. We have had the formal Initial Appearance of Mr. Krstic in respect of the new counts, essentially 7 and 8. We have read out Count 6, that is, paragraph 31(e), only (15)so that things be clearer, but I believe the essential changes are contained in Counts 7 and 8. For the time being, we must only remind the Prosecutor of the obligations pursuant to Rule 62 of the Rules, but once we have made changes of legal (20)characterisations, but that the facts do not change, I think that was the -- there was a legal classification. But there are, in fact, no new facts, and this is why I think that there would be no point in recalling the allegations of the Prosecutor to give all (25)supporting material to the Defence at the time of the

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(1)confirmation, that is, the amended indictment, to ask how long the Prosecutor intends to take before giving the documents. I think once there's a legal (5)classification -- I would like to ask the question of the parties. Taking into account the fact that we have set a date for the Status Conference of the 6th and 8th of December, I would like to hear the opinion of the parties. (10)Mr. Prosecutor.

MR. HARMON: Mr. President and Your Honours, we have proceeded in this case by providing to the Defence massive amounts of discovery; we continue to do so. We will provide the Defence very shortly with the (15)materials supporting the amended indictment. We have provided him with expert reports; we have started providing him with expert reports in January of this year. We are providing him today with another report of an expert. So we are having a fulsome discovery and (20)we are prepared -- on my conversations on the last occasion with Mr. Petrusic, once the amended indictment was presented to the accused, Mr. Petrusic, Mr. Visnjic, and I agreed to sit down and discuss what are the contested issues contained within this amended (25)indictment, and we will attempt to resolve, as

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(1)expeditiously as possible, and identify for the Court the issues that will be tried in this case. I think we are proceeding at a good pace. There's cooperation at this point in time in the case (5)between the Defence and the Prosecutor's office. I'm satisfied that we will make significant progress and we will make progress during the Status Conference on the 6th through the 8th.

JUDGE RODRIGUES: [Int.] (10)Mr. Visnjic, what is your opinion?

MR. VISNJIC: [Int.] Mr. President, I fully agree with what my colleague, Mr. Harmon, said; however, as for the specific dates, the 7th and 8th of December, are concerned, I have to place a reservation (15)on this, in view of the indictment itself and the points that we are contesting. I can't state my views now because Mr. Petrusic is not here, so perhaps it is from that point of view that I'm placing a reservation, so to speak, on the dates, the 7th and 8th of (20)December. Perhaps we are going to object, and then depending on how this objection is resolved, we're going to continue our cooperation with the Office of the Prosecutor. Thank you.

(25) JUDGE RODRIGUES: [Int.]

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(1)Mr. Visnjic, I believe that you spoke about the 7th and 8th of December, but I think we had set the 6th and the 8th.

MR. VISNJIC: [Int.] Yes, possibly I (5)made a mistake.

JUDGE RODRIGUES: [Int.] As regards the organisation of the work, I suggest to the parties that we keep the date of the 6th and the 8th for the Status Conference, at which point we can go into a more (10)in-depth analysis of all these questions. It isn't necessary to set the date for the Status Conference now because they have already been set. We will keep those dates, that is, the 6th and the 8th of December, and we will take advantage of that opportunity in order to see (15)where things stand, according to the indications that I was given before as the Pre-Trial Judge when we had our last Status Conference. I don't know if you are in a position to submit to me a memo with a brief answer so that I can (20)properly prepare the Status Conference for the 6th. My idea was that at that time, through Mr. Olivier Fourmy, I had indicated that I would like, at least eight days before the date of the 6th, to have your opinions about the proposals, which I had made to you as the Pre-Trial (25)Judge on the last occasion. If you could do that, it

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(1)would be better in terms of the efficiency of our work. I say eight days, or five days. It's not really a preemptory time period, it's not absolute. But I will wait to hear from you so we can prepare for the (5)Status Conference on the 6th of December. I don't know whether the parties have any comments to make. Mr. Harmon.

MR. HARMON: I only note for Your Honours' (10)purpose that I will be leaving the country and I will not be back in the country until the 2nd of December, so it makes it difficult for me to communicate with my colleague. Mr. McCloskey can obviously deal with this issue, but I will be out of the country for a week on (15)an unavoidable personal commitment, and therefore the memo that Your Honour receives may not be as complete, I think, because I would like to very much participate in assisting this Chamber in resolving issues at the pre-trial level, but we will direct the memo to you (20)nevertheless. Thank you.

JUDGE RODRIGUES: [Int.] Mr. Harmon, from the perspective of efficiency, would you prefer that we keep only the 8th of December, or can we also keep the 6th, in which case we would work with (25)Mr. McCloskey.

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(1) MR. HARMON: I'm satisfied to maintain the 6th through the 8th. I'll be back in time to work, and I think it is going to be work trying to resolve these issues, and I want to be a participant in those (5)issues. So I think the 6th, the 7th, and the 8th will give us a good start on resolving issues. Thank you.

JUDGE RODRIGUES: [Int.] Mr. Visnjic, do you agree with that? Do you have any final comments you would like to make?

(10) MR. VISNJIC: [Int.] Mr. President, I believe that the Defence is also going to have problems with time until then, so perhaps we are going to be a bit late with our memo, or perhaps it's not going to be as extensive as it would be otherwise. (15)I'll be here until the 2nd, I think, so I won't be seeing Mr. Petrusic until the 3rd of December, so perhaps in advance I should explain to the Court that that which you will receive will not be as extensive and as qualitative as possible had things (20)been usual.

JUDGE RODRIGUES: [Int.] No. Perhaps I should be more clear. I don't want a five-page memo and not a hundred pages, but just a short memo rather, a short memo in answering the (25)questions I asked during the last Status Conference.

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(1)I'm not talking about a hundred-page report. I'm just talking about a very short report in which you would say what the position of the parties is in respect of the questions that I asked during the last Status (5)Conference. I think that's very simple. There are no problems. You don't have to prepare big case files with many appendices. It's only general indications in respect of the answers to the questions that I asked, that's all. (10)With that clarification, I think we can close the session, and we will see one another on the 6th of December. The court stands adjourned.

--- Whereupon the Further Appearance (15)adjourned at 10.24 a.m., to be reconvened on Monday, the 6th day of December, 1999, at 10 a.m.