Tribunal Criminal Tribunal for the Former Yugoslavia

Page 2643

 1                           Tuesday, 15 December 2009

 2                           [Open session]

 3                           [The accused Simatovic entered court]

 4                           [The accused Stanisic appeared via videolink]

 5                           --- Upon commencing at 2.24 p.m.

 6             JUDGE ORIE:  Good afternoon to everyone.  Mr. Registrar, would

 7     you please call the case.

 8             THE REGISTRAR:  Thank you and good afternoon, Your Honours.  This

 9     is case number IT-03-69-T, the Prosecutor versus Jovica Stanisic, and

10     Franko Simatovic.

11             JUDGE ORIE:  Thank you, Mr. Registrar.

12             Before we continue, the Chamber received the form where

13     Mr. Stanisic has declared that he does feel not well enough to attend

14     court, that he does not waive his right to be -- to attend, to be present

15     in court, but that he wants to use the videolink facilities for following

16     the proceedings.

17             Any observation to be made in relation to this?  If not, then the

18     Chamber, under those circumstances being similar to the previous days,

19     decides to continue to hear the case.

20             A few procedural matters.  The Chamber expected submissions on

21     pseudonyms due yesterday, I think.

22             Mr. Groome.

23             MR. GROOME:  Your Honour, I had promised to provide --

24             THE INTERPRETER:  Microphone, please.

25             MR. GROOME:  -- them yesterday but -- I apologise.  A number of

Page 2644

 1     other matters occupied my time.  I will try to do that today and have it

 2     to the Chamber.  It's a very short submission, and it's in essence what

 3     I've indicated to the Chamber yesterday with the Prosecution.  The

 4     procedure would be in the case of a witness that had multiple pseudonyms.

 5             JUDGE ORIE:  Yes.  The Chamber would really appreciate to receive

 6     that today, because the Chamber has on its mind and already puts on the

 7     record now that VWS will be invited to see whether they want to file any

 8     submissions in relation to what you suggest, Mr. Groome.  Therefore, it

 9     would be appreciated if you, first of all, perhaps already send a

10     courtesy copy to the VWS, and at the same time, it's now on the record

11     that VWS is invited to make further submissions if they wish to do so,

12     and if they do not wish to do so, to let the Chamber know.

13             Next matter, Witness Kirudja who testified in September.  We

14     instructed him not to speak with anyone about his testimony, but we

15     couldn't do that forever.  I would like to hear from the Simatovic

16     Defence whether they have already considered whether or not they think

17     they should recall Mr. Kirudja to be further cross-examined or at least

18     to request a recall.  Well, sooner or later we'll have to decide whether

19     or not Mr. Kirudja is again free to speak.  If you have -- if you do not

20     know, then I would like to set a time limit that not later than

21     mid-January the Simatovic Defence should make up its mind as to whether

22     or not they would like to see Mr. Kirudja reappearing for further

23     cross-examination.  If so, then of course a request should be filed and

24     good cause should be shown.

25             Mr. Bakrac.

Page 2645

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

 2     have instructed me to put in a request, I'm not going to take up court

 3     time.  That's what we'll do.  I'm grateful.  And I think that that is the

 4     most effective and efficient way of proceeding at this point in time.  So

 5     if we put in a request to allow us by mid-January ...

 6             JUDGE ORIE:  No.  Well, it's -- there may be some confusion.

 7     When I said you should file a request, it would be once you've made up

 8     your mind whether you want to recall Mr. Kirudja for further

 9     cross-examination.  If you have no intention to do so, and I do not know

10     whether you've made up your mind already, then of course a simple

11     observation in court would do to say, "We are not insisting on

12     Mr. Kirudja to be recalled," but if you want to recall him, then you have

13     time until mid-January, to make a request for him to be recalled or to

14     inform the Chamber that there's no need for that.  And at this moment,

15     so, therefore, most important is that you should make up your mind and

16     then following what your position is, take the appropriate action, that

17     is either to inform the Court that you do not seek reappearance of

18     Mr. Kirudja for further cross-examination or that you would seek his

19     reappearance.

20             MR. BAKRAC: [Interpretation] Yes, I understand, Your Honour.

21     Thank you.

22             JUDGE ORIE:  The Chamber was informed by the OTP that in the

23     response to -- to the request, the urgent request for provisional release

24     filed by the Stanisic Defence that where it was said that the questions

25     the Stanisic Defence would put to Dr. Eekhof but not received prior to

Page 2646

 1     them being put to Dr. Eekhof, that that is a mistake and that the

 2     questions had been communicated to the Office of the Prosecution prior to

 3     them being put to Dr. Eekhof.  If that is the case, Mr. Groome, then it

 4     is hereby on the record.

 5             MR. GROOME:  It's partly true.  It doesn't explain all of the

 6     circumstances, Your Honour, but if Your Honour is aware of the

 7     circumstances, I intend to put all of the circumstances in a filing

 8     before the end of this week related to the submissions of the Registrar

 9     yesterday pursuant to Rule 33(B).

10             JUDGE ORIE:  I have not seen those, as a matter of fact.  So I

11     still have to look at them.  But I'm full time in court these days.

12             MR. GROOME:  Yes, I appreciate the Chamber is quite busy these

13     days.  Your Honour, the only facts that I think need to be put forward

14     that contrary to prior practice, the e-mails were sent to me alone from

15     Ms. Verweil, where in the past they had been sent to other members of my

16     staff.  There is daily communication between Ms. Verweil and Mr. Laugel,

17     so I did not see them, but I do recognise that I did receive two copies

18     contemporaneous with the time that Dr. Eekhof received questions.  So I

19     do accept that I did receive them and wish the response to be corrected

20     to reflect that.

21             JUDGE ORIE:  Yes.  Is there any further need to -- this seems to

22     be not the core of the problem.  It seems to be a procedural matter in

23     the margin of it.  Do we need to pay further attention to it, or could we

24     leave it to it being put on the record as it is now?

25             MR. GROOME:  I'm satisfied with that, Your Honour.

Page 2647

 1             JUDGE ORIE:  Yes.  Stanisic Defence as well?  Then we leave it to

 2     that.

 3             Finally, there was a request by the Prosecution to reply on the

 4     statement of Witness JF-005 tendered under Rule 92 ter.

 5             Now, the Chamber will adopt a practice in which we avoid further

 6     written submissions apart from the initial one and a response to avoid

 7     further written submissions until the witness appears.  However, if a

 8     reply could have the result of the witness not travelling to The Hague,

 9     under those circumstances, if that is what will be argued, so as that the

10     witness is unfit to testify at all or -- but if we're talking about

11     92 ter or viva voce, both would be with the witness travelling to The

12     Hague.  If that is the case, the Chamber will, as a general rule, not

13     allow further written submissions, and we will deal with the matter once

14     the witness has arrived in The Hague so that we also can further test the

15     reasons by -- accused by the parties, often in the presence of the

16     witness, just as with protective measures.

17             MR. GROOME:  Your Honour, if I may say with respect to this

18     particular witness, it does change rather dramatically the preparation

19     that the Prosecution will engage in whether we know prior to the winter

20     break whether the application will be granted or whether it will be

21     denied.  So if -- I'm not sure if the Chamber is expressing that it does

22     not intend to ultimately resolve the issue until the witness arrives here

23     in The Hague, but it would be of some benefit to the Prosecution in its

24     preparations to know in what manner the evidence of the witness will be

25     adduced prior to the witness being -- arriving in The Hague.

Page 2648

 1             JUDGE ORIE:  We'll further consider this.  It's not entirely

 2     clear to me yet.  I mean, if a witness testifies under Rule 92 ter, then

 3     of course a lot of questions not a need to be put to the witness.  If he

 4     testifies viva voce, I take it that his 92 ter statement would still

 5     serve as considerable guidance for viva voce testimony, but I don't know

 6     where the dramatic, and I think that's what you said, yes, the

 7     dramatically changes the preparation.  Could you explain in one or two

 8     lines?

 9             MR. GROOME:  Can I ask that we go into private session for that,

10     Your Honour?

11             JUDGE ORIE:  Yes, we will turn into private session.

12                           [Private session]

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12                           [Open session]

13             THE REGISTRAR:  Your Honours, we're back in open session.

14             JUDGE ORIE:  Thank you, Mr. Registrar.  For the next witness to

15     be called protective measures are in place, and we would have to turn

16     into closed session.

17                           [Closed session]

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20                           [Open session]

21             THE REGISTRAR:  Your Honours, we're now in open session.

22             JUDGE ORIE:  Thank you, Mr. Registrar.  Mr. Knoops.

23             MR. KNOOPS:  Thank you very much, Your Honour, that you give the

24     Defence an opportunity to address the Court briefly.

25             Yesterday's examination of Dr. Rowell touch upon the potential

Page 2734

 1     reporting system during the potential provisional release of

 2     Mr. Stanisic.  We think we could assist the Court further by informing

 3     that we were alerted today that Dr. Vera Petrovic is staying in Belgrade

 4     also during the recess, so we would give notice to the Court that if the

 5     Court thinks that might be an appropriate additional form of reporting

 6     that Court could consider this option in addition to the current medical

 7     report existent through the VMA.  She basically could physically see

 8     Mr. Stanisic in Belgrade in addition to his treating psychiatrist and

 9     reports twice or three times a week, and in the same vein we would like

10     to make sure that the Court understands that our request -- our petition

11     to the Court includes also an alternative, namely a lesser period than

12     the four weeks we mentioned in paragraph 5 of the provisional release

13     petition, and we leave it in the hands of the Court if based on the

14     evidence of Dr. Rowell yesterday such a shorter period of time would

15     further decrease any potential risk of deterioration.

16             Thank you.

17             JUDGE ORIE:  Thank you, Mr. Knoops.  I take it that we have to

18     understand your submission that not only that Dr. Vera Petrovic is

19     staying in Belgrade and what could be done but that she has expressed

20     willingness to do such reporting.  Is that how we have to understand your

21     submission?

22             MR. KNOOPS:  Your Honour, we didn't -- we're not able to verify

23     whether she's willing but the Court might be in a position to check that.

24     I'm sure because she's treating psychiatrist of Mr. Stanisic, and I don't

25     see an objective reason why she would deny such a potential commission of

Page 2735

 1     the Court.

 2             JUDGE ORIE:  Yes, just in order to be sure how we should

 3     understand your submission.  Any further matter?

 4             MR. GROOME:  Your Honour, I just have a brief matter to withdraw

 5     an objection that the Prosecution made to a Defence exhibit.  If it

 6     pleases the Court, it should take me less than a minute, I believe.

 7             JUDGE ORIE:  Would it be any different if that -- we would hear

 8     that after the recess?

 9             MR. GROOME:  Just that we might forget about it, Your Honour, but

10     I'll make a note.

11             JUDGE ORIE:  You should not forget about it, Mr. Groome.

12             MR. GROOME:  I thought it might save the Chamber --

13             JUDGE ORIE:  Yes, but we asked already quite a bit from the

14     interpreters and from transcribers, and then I would really leave that to

15     what is absolutely necessary to be done at this moment and any other

16     matter which is of such urgency that we couldn't wait.

17             Then I wish everyone good times to come.  I know that for some it

18     may be more difficult than for others.  The Chamber is fully aware that

19     we are not finding ourselves all in a similar position, but at least I

20     hope that everyone can enjoy his Christmas, whether that is in December

21     or whether that is in January, and we'll adjourn until the 20th of

22     January, quarter past 2 in the afternoon in Courtroom II.

23                           --- Whereupon the hearing adjourned at 7.09 p.m.,

24                           to be reconvened on Wednesday, the 20th day of

25                           January, 2010 at 2.15 p.m.