Tribunal Criminal Tribunal for the Former Yugoslavia

Page 2188

 1                           Monday, 14 September 2009

 2                           [Open session]

 3                           [The Accused Simatovic entered court]

 4                           [The Accused Stanisic not present]

 5                           --- Upon commencing at 2.18 p.m.

 6             JUDGE ORIE:  Good afternoon to everyone.

 7                           [French on English channel]

 8             JUDGE ORIE:  I do receive a language I like very much, but on a

 9     channel -- channel 4, I received French.

10             Madam Registrar, would you please call the case.

11             THE REGISTRAR:  Good afternoon, Your Honours.  This is case

12     IT-03-69-T.  The Prosecutor versus Jovica Stanisic and Franko Simatovic.

13             JUDGE ORIE:  Thank you, Madam Registrar.

14                           [Trial Chamber confers]

15             JUDGE ORIE:  I see we have a videolink with the undue at this

16     moment.

17             Dr. Eekhof, can you see me?  Can you hear me?

18             DR. EEKHOF:  Yes, I can see you; I can hear you.

19             JUDGE ORIE:  No, I don't see and hear you.  Yes.  Yes, I would

20     like to ask you again whether you can see me, whether you can hear me.

21             DR. EEKHOF:  I can see and I can hear you.

22             JUDGE ORIE:  Thank you.  We also now can hear you, if we are

23     plugged in on the right socket.  Before we start, could the

24     Simatovic Defence -- I would say the new Simatovic Defence introduce

25     itself.

Page 2189

 1             MR. BAKRAC:  [Interpretation] Good afternoon, Your Honours.

 2             Good afternoon to the colleagues from the OTP.  I'm attorney at

 3     law, Bakrac, and I am the newly appointed Defence counsel for

 4     Mr. Simatovic.  And Ms. Ingrid Morgan is today with me in the courtroom.

 5             JUDGE ORIE:  Thank you.  Welcome in this courtroom, Mr. Bakrac.

 6             We'll come to the newly appointed Simatovic Defence in a minute.

 7     I see that the Stanisic Defence is present, and the Prosecution is

 8     present.

 9             I'd first like to already ask right from the beginning whether

10     there are any questions for Dr. Eekhof either from Prosecution side.

11             MR. GROOME:  Not from the Prosecution.

12             JUDGE ORIE:  Mr. Knoops, any question for Dr. Eekhof?

13             MR. KNOOPS:  No questions, Your Honour, for Dr. Eekhof.

14     Thank you.

15             JUDGE ORIE:  I started with this, Dr. Eekhof, because I didn't

16     want to keep you busy for any minute longer than necessary.  Just for

17     your information the Chamber always tries once the documents are received

18     to inquire with the parties whether they have any questions for you.

19     Now, sometimes it is not easy to communicate with the parties, and that

20     can result now and then, unfortunately, in you being present, although no

21     questions for -- to be put to you at this moment.  So therefore, as far

22     as I'm concerned, you are excused.

23             We've received - and I'll put that on the record - we've received

24     your report from this morning.  We have received the last weekly report.

25     We have received the absence from court due to illness form, and we have

Page 2190

 1     received the short form undue medical service questions which were signed

 2     by you as well.  We've received them.  We also received the

 3     Jovica Stanisic non-attendance in court form.  There are no questions for

 4     you, we have received all the written documents.  Thank you very much for

 5     making yourself available, and we'll try to avoid that you have to be in

 6     the videolink if there are no questions for you.

 7             DR. EEKHOF:  Thank you very much, but it's not a problem.

 8             JUDGE ORIE:  Thank you.  Then you are excused.  Any party would

 9     like to make any observations as far as continuing the proceedings in

10     what appears to be the absence of Mr. Stanisic?

11             MR. Knoops?

12             MR. KNOOPS:  No comment, Your Honour.

13             JUDGE ORIE:  Mr. Knoops, I take it that you have -- we have

14     received the report of the reporting psychiatrist Dr. De Man, you've

15     received that?

16             MR. KNOOPS:  That is correct, Your Honour.  Thank you.

17             JUDGE ORIE:  Thank you.  I ask you this because you had expressed

18     specific wishes in relation to the reporting by the psychiatrist.

19             Any other matter in relation to Mr. Stanisic's health to be

20     raised at this moment?  If not, we'll proceed in the absence of

21     Mr. Stanisic.

22             The Chamber received a decision by the Deputy Registrar, dated

23     the 11th of September of this year, in which it is decided that

24     Mr. Bakrac is assigned as counsel to the accused Simatovic, effective

25     from the 11th of September.  The withdrawal of the assignment of

Page 2191

 1     Mr. Domazet and assignment of Mr. Petrovic as co-counsel to Mr. Bakrac,

 2     effective also the 11th of September, 2009.  And finally in this

 3     decision, Mr. Domazet is directed to hand over to Mr. Bakrac any case

 4     related materials he received or produced during his assignment in

 5     accordance with his duties under Article 9(d) of the code of conduct, and

 6     to cooperate with the newly constituted Defence team for the period of

 7     his assignment as legal consultant.

 8             Any matters to be raised in relation to this decision by the

 9     Registry?  No questions in relation to that.

10             Then, I would like to -- before we move on to two motions that

11     have been recently filed, the Chamber would like to give its guidance on

12     the issue of exhibit stamps which was raised during one of the -- the

13     testimony of one of the witnesses.  It's, therefore, now the Chamber's

14     instructions on the issue of exhibit stamps will be read by me.  During

15     the hearing of the 27th of August 2009, the issue of the presence of

16     trace markings from other cases on documents sought for admission in the

17     present case arose.  The Prosecution suggested that ordinary documents

18     tendered in this case should be differentiated from documents which are

19     sought for admission as part of a Rule 92 ter package.  The Chamber

20     informed the parties that it would further consider this matter and

21     having done so, the Chamber's position is as follows:  For documents

22     which are tendered as written evidence from another case in application

23     of rules 92 bis, 92 ter, or 92 quater, the Chamber agrees that it would

24     be useful for these documents to bear the trace markings received in

25     those other cases, if there are any.

Page 2192

 1             In such instance, the party tendering the documents would not

 2     have to present in addition a clean copy of the document.  For all other

 3     documents, however, the Chamber wishes to avoid unnecessary markings on

 4     the documents sought for admission which originate from the documents

 5     processing as evidence in other cases.  In such instance, the party

 6     tendering the document would have to present a copy of the document

 7     without the trace markings that may have been placed in other trial

 8     proceedings.

 9             This concludes the Chamber's instruction.  Perhaps I could add

10     that of course even if we find no traces of the way in which these

11     documents were processed in other cases as evidence, of course we find

12     often additional markings such as stamps on -- in which the authenticity

13     of the document is confirmed or we have ERN numbers, and that's not what

14     this guidance is about.  It's just about exhibit numbers in other cases.

15     So admission into evidence, these kind of markings that come from other

16     cases, again to be accepted if the document is tendered specifically as a

17     document which was used in the other case and otherwise not to be found

18     on it.

19             Any questions in relation to this?  No questions.  Then the

20     Chamber has received recently, not to say very recently, two motions by

21     the Simatovic Defence of the 14th of December.  The first Defence motion

22     requesting adjournment of trial proceedings; and the other one,

23     Defence motion requesting provisional release of Mr. Simatovic.

24             The Prosecution, as usually, will have two weeks to respond to

25     these motions.  There will be no hearings until a decision on these

Page 2193

 1     motions has been delivered.

 2             Mr. Knoops, is it the intent of the Stanisic Defence to respond

 3     to these motions as well, or would you still consider your position?

 4             MR. KNOOPS:  Thank you, Your Honour, for asking me this question.

 5     The position of the Stanisic Defence is that we will leave it into the

 6     hands of the Court with respect to the motion for adjournment of

 7     proceedings on the request of Mr. Simatovic.  With respect to the

 8     provisional release, we think that in terms of judicial economy, it's

 9     wise to announce the Chamber that also considering these developments,

10     that the Stanisic Defence will file in due course a similar motion for

11     provisional release.  Maybe that could be taken into account with respect

12     to the responses of the Prosecution and the Chamber's decision, and then

13     hopefully we are able to file that motion in due course.  We anticipate

14     to file this motion maybe this week.  So that's the -- Prosecution could

15     respond maybe to both applications at the same time, and the Court can

16     render the decision on the both requests for provisional release at that

17     time.

18             JUDGE ORIE:  Simultaneously, yes.

19             Mr. Groome.

20             MR. GROOME:  Your Honour, I just received Mr. Simatovic's

21     provisional release application before coming to Court; I haven't had a

22     chance to study it.  But it seems that both of them would be conditioned

23     upon the Chamber's decision with respect to an adjournment.  So if with

24     the Court's leave, the Prosecution would respond to those, conditionally,

25     that should the Chamber decide that an adjournment is appropriate here,

Page 2194

 1     that that would be our position.

 2             JUDGE ORIE:  Some adjournment already of course is decided

 3     because we will not hear the case until we have decided on these motions.

 4     So that is already an inherent adjournment.  But you'd say the

 5     adjournment as requested by the Simatovic Defence.

 6             MR. GROOME:  Yes, Your Honour.

 7             And then, Your Honour, I had come prepared today - I welcomed the

 8     Chamber's opportunity to respond in writing - but I had come today

 9     prepared to make some submissions to the Court with respect to the motion

10     for adjournment, so just to correct some factual matters in the motion if

11     the Chamber is assisted by that.  And also had some observations to make,

12     submissions to the Chamber to make, should there be an adjournment, how

13     -- some suggestions for how we might make productive time or use of that

14     time so that when we do resume active hearings, that we can expedite

15     matters before the Chamber.  I can put that in a written form if the

16     Chamber would prefer in the response to the motion for adjournment, or

17     I'm happy to discuss some of those today.

18             JUDGE ORIE:  Yes.

19                           [Trial Chamber confers]

20             JUDGE ORIE:  Mr. Groome, if there are any corrections to be made

21     in relation to factual information contained in the motions, then the

22     Chamber would like to hear it now, which would also result in the

23     Simatovic Defence hearing it and even being to able correct, if there's

24     any need for that, its motion, or to further explain those matters so

25     that we can take them all together when we finally will decide on the

Page 2195

 1     motions.  Apart from that, so what your position would be that that --

 2     the Chamber will be glad to receive that in writing.

 3             MR. GROOME:  Your Honour, just the two factual corrections are -

 4     I think it was paragraph 11 of the application - it stated that the

 5     Prosecution exhibit list was of -- had 5.000 exhibits.  The actual number

 6     of exhibits is 3.548, and I think in the same paragraph, it was stated

 7     that the Prosecution intended to call over 100 witnesses.  There are

 8     100 witnesses, 64 of which would be called for hearings.  So there is a

 9     substantial number that would not be called live.

10             And it may the Chamber as well, I asked for a calculation of the

11     amount of materials for the first five witnesses.  And for the first five

12     witnesses, Your Honour, the number -- the amount of material that we

13     would be dealing with would be 112 exhibits, 7 statements, 11 days of

14     prior testimony, and 6 proofing notes.  Thank you, Your Honour.

15             JUDGE ORIE:  Yes, and those were the first five witnesses already

16     scheduled, or now being scheduled to accommodate the Defence?

17             MR. GROOME:  Your Honour, I think the best way to consider that

18     is kind of a random sample from the witness list.  Because until we know

19     an actual date of hearing, it's hard to give those first five.  But I

20     think it is reflective -- I think if we were to take any five, this would

21     be indicative of the amount of material for the five witnesses.

22             JUDGE ORIE:  Thank you.  Well the correction, unless the

23     Simatovic Defence would disagree with the corrections, we'll take the

24     numbers as being corrected, but if, Mr. Bakrac, if you would disagree

25     with the numbers now given by Mr. Groome, then of course we'd like to

Page 2196

 1     hear from you.

 2             MR. BAKRAC:  [Interpretation] No, Your Honour.  I'm not in a

 3     position at all to disagree simply because I am completely and utterly

 4     new to the case, and the information concerned is information I received

 5     from members of the team of late Mr. Jovanovic who were unable to give me

 6     precise answers to my questions as to what sort of material this was, and

 7     the quantities involved.

 8             This was an approximation that we put into our motion.  I do not

 9     doubt the sincerity of my learned friend, Mr. Groome.  However, I believe

10     that the correction which said that is it's not 5.000 pieces of evidence

11     but 1.300 and -- or, rather, 3.548.  And this is a case which is of the

12     third degree of complexity, and the number of witnesses involved is

13     already argumentation enough to support the points that is Mr. Petrovic

14     and I placed in our motion.

15             The case of such a complexity is prepared --

16             JUDGE ORIE:  Mr. Bakrac, I asked you whether you wanted to give

17     further questions to what Mr. Groome said.  I do understand that you even

18     feel not to be in a position to comment on that, and you slowly, I think,

19     proceeded in -- well, emphasising what we find already in the motion to

20     adjourn.  And of course we'll read that, and we'll first weight what the

21     response of the Prosecution to that will be.  Nevertheless to be on a

22     very practical level, if I would want to know how many documents there

23     are on a 65 ter list, I would just look at that list.  That would take me

24     approximately three minutes to verify whether the number is correct or

25     not, rather than asking others.  I mean, that's all officially filed.

Page 2197

 1     You find it in e-court.  So, therefore, I would be able to verify the

 2     numbers.  And, well, if it would not be three minutes, then it would be

 3     four, but not anything more.  But you have an opportunity to correct him,

 4     if what Mr. Groome said was not accurate.

 5             Any further matter in relation to these motions?

 6             Yes, Mr. Bakrac?

 7             MR. BAKRAC:  [Interpretation] No, Your Honour.  I'm not in a

 8     position to contradict Mr. Groome.  I would like to recall that

 9     unfortunately late Mr. Jovanovic kept all the documentation with him.

10     There is a procedure in place to get hold of the material.  I haven't

11     even met with Mr. Domazet to receive the material from him.  As you are

12     well aware, I was assigned as counsel on the 11th, on Friday, and this is

13     the first working day.  Hence, I'm not in a position to challenge any of

14     the points put forth by Mr. Groome.  Nevertheless, I don't think that the

15     points we are trying to make in our motion is affected by this at all

16     since the time necessary to prepare on all the material mentioned here

17     does not change.  I don't want to repeat everything that we've stated in

18     our motion.  I am at your disposal if the Trial Chamber would want me to

19     clarify any of the points.  But I don't want to repeat them all here, I

20     don't think it's necessary.

21             JUDGE ORIE:  No, we find them in the writing.

22             There's one matter I would like to briefly raise with you.  I'm

23     not asking for a response, but in the motion you, Mr. Bakrac, you are

24     telling the Court that it will be a whole new team in every respect, not

25     only counsel and co-counsel.  First of all, I do not know whether this

Page 2198

 1     has already been approved by OLAD that others are replaced as well, but

 2     replacing all members of the team by others as a reason it to claim

 3     further time to prepare is not what the Chamber expects a responsible

 4     Defence team to do because work has been done by members of the team and

 5     profit, whatever profit can be taken from those who have worked on the

 6     case, that we can't just allow a team to throw that away and say, We need

 7     more time because we have a new team.

 8             Of course, unfortunately Mr. Jovanovic is not able to continue

 9     his job due to his, as you said also in the motion, his death, and

10     therefore, under those circumstances, it's of utmost importance to keep

11     everything and to carefully watch that nothing of the results by team

12     members, up to that moment, will be lost.  And replacing the whole team -

13     the Chamber is aware of the position of Mr. Domazet who has been assigned

14     to temporarily still assist the team - but to replace other team members

15     might not be in the interests of judicial economy.  And, therefore, I'm

16     not going to further comment on it at this moment, but since it is

17     announced that you need so much time also because the whole team will be

18     new, that's not what the Chamber expects a team to do.

19             MR. BAKRAC:  [Interpretation] Your Honours, thank you for not

20     requiring me to reply right away, and thank you for allowing me to reply

21     at a later stage after considering this matter.  What I would like to

22     state is that there is possibly a misunderstanding.  As you can see,

23     Ms. Ingrid Morgan is with me today.  It wasn't until today that I

24     received a full list of the team members.  I had a meeting with OLAD

25     before coming to this courtroom, and naturally I will do my best to use

Page 2199

 1     the services of every single team member who could contribute to speeding

 2     up the process.

 3             There is no need for me to go into further details right now, but

 4     I'm prepared to accept that any member of the team who can be of

 5     assistance to speed up the trial remain on the team.  I wasn't able to

 6     meet and to talk with Mr. Domazet, who is our senior and esteemed

 7     colleague and who was co-counsel in this case, and I don't know to what

 8     extent he is prepared to continue as legal consultant in this case, given

 9     the relationship between him and my client.  I'm not aware whether he is

10     prepared or not.  I'm certainly willing to take him on, but should that

11     not be of assistance, then it would make more sense to take on board

12     somebody else who would contribute to speeding up the trial.

13             Otherwise, I fully agree with you that all resources that could

14     be used in order to prepare for the case in a faster way needs to be

15     done.  And in all those cases where we think that a replacement would be

16     useful, I will, regarding all those instances, submit a motion to you and

17     to the Registrar concerning such situations.

18             JUDGE ORIE:  Well, you are invited to further discuss the matter

19     with OLAD, and I just wanted today express the concern of the Chamber

20     where that language was used that the team would be replaced or there

21     would be a wholly new team, that's not what we expected.

22             Then Prosecution is invited to respond to the provisional release

23     motion, if possible, together with the Stanisic provisional release

24     motion.

25             MR. GROOME:  Yes, Your Honour.  I will do that.  And there is one

Page 2200

 1     matter that I would like to state and just to say it on the record, that

 2     I would request that Mr. Bakrac and Ms. Morgan come back to my office

 3     with me.  I've arranged to have staff available to ensure that they have

 4     -- there are no disclosure issues, that they have access to all the

 5     disclosure material.  And I'd like to begin that process today, so I just

 6     want to put on record that I'm requesting that they do return for a

 7     meeting with me, short meeting after this hearing.  Thank you.

 8             JUDGE ORIE:  Yes, well, you are invited for tea, Mr. Bakrac.

 9             Any other matter?

10             MR. BAKRAC:  [Interpretation] Thank you, Your Honour.  Thank you

11     to my learned friend.

12             JUDGE ORIE:  Any other matter to be raised at this moment?  If

13     not, the Chamber will issue -- once it has decided on the motions, will

14     issue a Scheduling Order which of course will then be in accordance with

15     the decision which will be -- by then, be delivered on the motion to

16     adjourn.  Therefore, we stand adjourned at this moment sine die.

17                           --- Whereupon the hearing adjourned sine die

18                      at 2.50 p.m.