140929IT

Page 11875

1 After considering the submissions of the parties made at a time

2 of tendering as well as the fact that the witness expressly denied the

3 truth of the claims contained therein, the Chamber finds that it will not

4 be assisted by having the documents admitted into evidence.

5 Therefore, admission of the documents with Rule 65 ter numbers

6 06637 and 06638 is denied.

7 Mr. Zivanovic, I think you have submissions to make.

8 MR. ZIVANOVIC: Yes, Your Honours.

9 The submission concerns the Trial Chamber's decision of 26

10 September 2014 denying the Defence motion for admission of DGH-016's

11 statement pursuant to Rule 92 ter.

12 The Defence's request is two-fold: First, to reconsider the

13 decision; second, if the Chamber is not minded to grant reconsideration,

14 to grant an adjournment to permit further preparation of the

15 Witness DGH-016's testimony.

16 [Trial Chamber and Registrar confer]

17 [Trial Chamber and Legal Officer confer]

18 JUDGE DELVOIE: Just give us a moment, please.

19 MR. ZIVANOVIC: Yes.

20 [Trial Chamber confers]

21 [Prosecution counsel confer]

22 JUDGE DELVOIE: Sorry, Mr. Zivanovic, for the interruption.

23 Please continue.

24 MR. ZIVANOVIC: Thank you.

25 The Defence also requested certification of the Trial Chamber's

Page 11876

1 decisions -- decision but relies on its submission in writing.

2 Reconsideration is warranted on at least two grounds.

3 First, the timing of the rendering of the decision has impaired

4 the Defence's preparations for the witness's testimony. Although it may

5 be true that the Defence has no legitimate expectation that any given

6 Rule 92 ter motion should be granted, the uncertainty as to whether it

7 would be granted substantially slows down the preparation of the witness.

8 This is particularly the case in respect of a witness whose statement is

9 as long, detailed, comprehensive, and document-intensive as that of

10 DGH-016.

11 The difference between having to adduce all of those 52 pages of

12 content viva voce and being able to rely on the statement as admitted is

13 very substantial. A decision coming just five days before the witness's

14 appearance substantially impaired the Defence's preparations. This

15 favours reconsideration, as the timing of the decision has impaired the

16 Defence's ability to prepare.

17 The Prosecution's preparation, on the other hand, has not been

18 equally impaired. The cross-examination would, in either event, rely on

19 the witness's statement as impeachment material, regardless of whether it

20 is admitted or not. The nature of cross-examination preparation is

21 therefore not equally uncertain as is the preparation of direct

22 examination.

23 The second basis for reconsideration, respectfully, is the Trial

24 Chamber's characterisation of DGH-016's testimony as unique and its

25 potential importance to a very broad range of allegations in the

Page 11877

1 indictment. It is paragraph 16 of the decision.

2 In a sense, every important witness is unique and addresses a

3 range of allegations in the indictment, but DGH-016's testimony is no

4 more unique and no broader than two very important Prosecution witnesses

5 whose testimony was heard pursuant to Rule 92 ter, GH-002 and GH-016.

6 Those two witnesses held positions that are indistinguishable from that

7 of DGH-016, testified on the same or similar subjects as DGH-016,

8 involved statements somewhat shorter than DGH-016, and, therefore,

9 presumptively saving less courtroom time than DGH-016. And GH-002, like

10 DGH-016, had previously testified viva voce once and given one previous

11 statement to the Office of the Prosecutor, thus providing additional

12 impeachment material and that would be the case in respect of first-time

13 witness.

14 In fact, GH-002 and GH-016 were much more unique an important to

15 the Prosecution case than is DGH-016 to the Defence case. The Defence is

16 set to call seven government ministers, whereas, the Prosecution called

17 only two. Given this context - that the Chamber will have heard nine

18 government ministers by the end of this case - DGH-016's testimony cannot

19 properly be described as unique. This justifies reconsideration. Both

20 of those Rule 92 ter decisions, for Your Honours' reference, was 2nd

21 November, 2012.

22 If Your Honours are not minded to reconsider your decision

23 denying the admission of DGH-016's statement pursuant to Rule 92 ter,

24 then an adjournment is requested to permit further pre-testimonial and

25 interviews with the witness. We also request an increase in the time to

Page 11878

1 examine the witness from five to 12 hours. Those requests are justified

2 and necessary on the following grounds:

3 First, Your Honours have expressed a preference in paragraph 18

4 of your decision that the procedure of putting the Prosecution's case and

5 evidence to a witness "be carried out by the calling party in court

6 during direct examination." If the Defence is to fully and

7 comprehensively comply with that preference, more time will be required

8 for the witness to address those matters as they were covered in his

9 statement.

10 Second, the witness statement whose admission was denied on

11 Friday is lengthy and complex. Your Honours have seen the number of

12 documents which are associated with that statement amounts to over 100.

13 While many of these documents are already in evidence, 35 are not, and

14 the witness also comments on a number of exhibits that have been admitted

15 as Prosecution Exhibits. Substantial additional time is required to

16 prepare the witness to answer questions that are set out at length and in

17 detail in the statement.

18 Third, the five hours originally planned for the witness's

19 testimony are inadequate to adduce the witness's entire testimony. The

20 five hours originally allocated to the witness was predicated on the

21 admission his statement pursuant to Rule 92 ter. Those five hours were

22 allocated because of the large number of judicial documents - orders to

23 conduct investigations, investigation reports, indictments, and

24 judgements against perpetrators, which the Prosecution, in this case, has

25 conceded at transcript page 9918 were absolutely relevant. Your Honours

Page 11879

1 also received notice on 18 September 2014 that the original number of

2 relevant documents to use with the witness's testimony had increased to

3 600 and, I believe, 50, from the original estimation. 686 -- 85, sorry.

4 A suitable period of adjournment is one week. In the

5 alternative, the Defence requests any lesser adjournment as the Trial

6 Chamber may deem in the circumstances.

7 Thank you.

8 JUDGE DELVOIE: Thank you, Mr. Zivanovic.

9 Is there a response from the Prosecution?

10 MR. OLMSTED: Yes, Mr. President.

11 A motion for reconsideration requires a showing of either a clear

12 error of reasoning in the underlying decision or that reconsideration is

13 necessary to present an injustice. In this circumstance, the Defence

14 have not shown that either of those requirements. In particular, the

15 Defence have not shown any clear error in the Trial Chamber's underlying

16 decision finding that the unique nature of DGH-016's first-hand

17 observations, his position as SBWS minister of justice, and the potential

18 importance of his evidence require, in the interests of justice, that he

19 testify viva voce.

20 Now, the Trial Chamber has broad discretion in determining the

21 mode in which it will receive a witness's evidence as it alone must

22 decide what weight to give that evidence. And, in fact, the Defence's

23 motion for an adjournment supports the Trial Chamber's decision in that

24 the Defence argues in that motion that this witness's evidence is

25 important to its case.

Page 11880

1 Now, Defence counsel has argued that the Trial Chamber needed to

2 compare this witness's evidence with the evidence of witnesses in the

3 Prosecution's case. But that really is in opposite because each witness

4 must be looked at individually, and the Trial Chamber's determination

5 should be focussed on the evidence of this particular witness without

6 resort to looking at prior decisions with regard to completely unrelated

7 witnesses.

8 Now, the Prosecution notes that in its response to the motion for

9 Rule 92 ter that it pointed out a number of procedural irregularities

10 with regard to DGH-016's statement which merit the calling of this

11 witness viva voce. And in particular the witness was provided with

12 statements of Prosecution witnesses and asked to comment on them. And

13 the Prosecution maintains that this is a technique that is reserved

14 solely for cross-examination because it is intended to impeach witness

15 evidence. Now, the Trial Chamber did not make a ruling on that issue but

16 it did find that the better avenue was for this witness to address this

17 sort of evidence viva voce.

18 Now, with regard to the second consideration, there is no

19 injustice here because the Defence will be able to elicit the evidence of

20 the witness viva voce. Defence counsel raises the issue of lack of time,

21 and I think that Your Honours did receive the e-mail that Mr. Stringer

22 sent this morning on our submissions. And I just want to emphasise that

23 the crux of the matter that the Defence scheduled DGH-016 to testify with

24 only one and a half week's notice to the Trial Chamber and to the

25 Prosecution and without a decision from this Trial Chamber on the 92 ter

Page 11881

1 motion. The Defence should have inquired about the status of that

2 decision several weeks ago, or it should have asked the Trial Chamber to

3 give priority to that particular 92 ter motion, or it should have simply

4 waited to receive that decision before scheduling this witness.

5 These are the approaches that the Prosecution took in its case

6 in-chief and that is the reason why these problems didn't arise in the

7 Prosecution's case. Instead, in the matter at hand, it was Prosecution

8 who last week raised the issue of this outstanding decision on the 92 ter

9 motion, not the Defence. And it appears to the Prosecution that what the

10 Defence is doing is waiting until the last possible moment to schedule

11 and notify the Prosecution and the Trial Chamber of a witness, and in

12 doing so they are basically creating their own problems, such as this

13 one.

14 Now, turning briefly to the motion for adjournment. And again,

15 Mr. Stringer raised our central points in his e-mail, but I would like to

16 add here that what has happened in this situation is by no means unique.

17 On February 3 of this year, in the Karadzic case, Mico Stanisic indicated

18 at the beginning of his testimony that he was invoking his rights under

19 Rule 90(E) with regard to his 92 ter statement. The Trial Chamber

20 therefore denied admission of that statement into evidence and instructed

21 Mr. Karadzic to begin immediately with his direct examination, which

22 Mr. Karadzic, in fact, did.

23 And in our response to the -- under 92 ter motion, we cited a

24 decision by the Trial Chamber in the Stanisic and Zupljanin case on 1

25 April 2010 in which the Trial Chamber denied admission of a 92 ter

Page 11882

1 statement of a witness on the same grounds as in this case, and that

2 statement at issue there was equally if not more complex and lengthy than

3 the one of DGH-016.

4 According to the denied 92 ter statement, the Defence met with

5 DGH-016 on at least nine occasions prior to arriving in The Hague to

6 prepare his evidence in this case, and we understand that the Defence

7 counsel has met for several days with DGH-016 to further prepare him for

8 his testimony, and therefore he should be amply prepared to provide

9 evidence that's contained within the statement. After all, it is his

10 statement. And in contrast, the Prosecution has only known that this

11 witness would be coming this week one and a half weeks ago and the

12 Prosecution is ready to go forward with cross-examination.

13 The Prosecution doesn't take a position with regard to the amount

14 of time the Defence needs for direct examination.

15 Thank you, Your Honours.

16 MR. ZIVANOVIC: Your Honour --

17 JUDGE DELVOIE: Mr. Zivanovic.

18 MR. ZIVANOVIC: -- I would just briefly reply.

19 First of all, in my view, we illustrated what kind of injustice

20 would be -- would be -- had the Defence if -- if the motion -- if our

21 request for reconsideration is denied. I'll not repeat it.

22 On the other hand, we submitted -- we brought this witness after

23 six weeks of -- as -- as the Trial Chamber ordered, six weeks after

24 submission of his Rule 92 ter statement, and we submitted a schedule, a

25 witness schedule with him, within the time set out by the Trial Chamber.

Page 11883

1 So it -- it is very short reply as to the Prosecution's response.

2 JUDGE DELVOIE: Thank you.

3 We will try to resolve the issue in a 20- or 30-minute break.

4 Court adjourned.

5 --- Break taken at 2.40 p.m.

6 --- On resuming at 3.18 p.m.

7 JUDGE DELVOIE: This is the Chamber's oral ruling.

8 The Chamber is seized of the Defence motion for adjournment of

9 trial to permit additional pre-testimonial interviews of witness DGH-016

10 or, in the alternative, certification of the Trial Chamber's decision of

11 26 September in relation to DGH-016 whereby the Defence requests a

12 one-week adjournment in order to have more time for "pre-testimonial

13 interviews" with the witness.

14 The Chamber notes that by e-mail from the Chamber, the Defence

15 was on notice since Wednesday evening, 24th of September, that its motion

16 to hear DGH-016 pursuant to Rule 92 ter would be denied and that the

17 evidence of DGH-016 should be presented viva voce.

18 The Defence thus effectively had four and a half days to have

19 additional interviews with the witness before the scheduled start of the

20 testimony. Moreover, the Chamber notes that in the process of producing

21 a 51-page-long 92 ter statement by the witness, the Defence should have

22 had enough time to discuss all of the relevant issues with the witness.

23 Nevertheless, the Chamber will allow for the requested

24 adjournment. A number of circumstances have led to the current situation

25 in which the Defence, even though it should not assume that the

Page 11884

1 Rule 92 ter motion will be automatically granted, has had to re-adjust

2 its preparation for the witness.

3 In addition, as already noted by the Chamber in its decision of

4 26 September, the evidence of this witness is of such nature that it

5 should be led viva voce, and by having an adjournment, the Chamber

6 expects that the efficiency of the examination of the witness will be

7 increased.

8 Accordingly, DGH-016's testimony shall commence on Tuesday,

9 7 October. The Chamber will sit from Tuesday through Friday of that

10 week.

11 Furthermore, while the Defence has requested 12 hours for the

12 examination-in-chief of DGH-016, the Chamber finds that ten hours, double

13 the time requested in the Defence's 92 ter motion, is more than

14 sufficient to lead DGH-016's evidence viva voce.

15 Having granted the motion for adjournment as requested, the

16 alternative request for certification becomes moot.

17 Finally, the Chamber notes that only today in court during the

18 oral submissions, the Defence asked for the reconsideration of the

19 20 September decision. The Defence submitted that, firstly, the decision

20 impaired its preparations and, secondly, that the Chamber's

21 characterisation of DGH-016's evidence as unique and of importance to a

22 broad range of allegations is actually not that unique, especially

23 compared to witnesses GH-002 and GH-016.

24 The Chamber notes that the Chamber has the discretion to

25 reconsider the previous interlocutory decision in exceptional cases if a

Page 11885

1 clear error of reasoning has been demonstrated or if it is necessary to

2 do so to prevent an injustice. Particular circumstances justifying

3 reconsideration include new facts or new arguments.

4 The Chamber finds that the Defence has not demonstrated any new

5 facts or arguments and that it has therefore not met this test. The

6 Chamber notes that, in any event, the first argument by the Defence in

7 support of the submission for reconsideration has been remedied by the

8 granting of the request for adjournment.

9 If there's nothing else for the day, court is adjourned.

10 --- Whereupon the hearing adjourned at 3.25 p.m.,

11 to be reconvened on Tuesday, the 7th day of

12 October, 2014, at 9.00 a.m.