1 Wednesday, 3 March 2010
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.19 p.m.
5 JUDGE ORIE: Good afternoon to everyone in and just around the
6 courtroom assisting us.
7 Madam Registrar, would you please call the case.
8 THE REGISTRAR: Good afternoon, Your Honours. This is case
9 number IT-03-69-T, the Prosecutor versus Jovica Stanisic and
10 Franko Simatovic.
11 JUDGE ORIE: Thank you, Madam Registrar.
12 Mr. Knoops, the Chamber was informed that you would like to
13 address the Chamber, or Mr. Jordash.
14 MR. JORDASH: The issue we would like the opportunity to address
15 Your Honours on concerns the provisional release or potential provisional
16 release application, and the issue of when the question should be put to
17 Dr. Eekhof, and we would like to apply orally to have the opportunity to
18 reply to the Prosecution's response in order to -- and then actually
19 reply orally in order to be able to expedite the process so that we can
20 know where we stand in terms of filing an immediate provisional release
21 application or waiting for Dr. Eekhof to answer the questions depending
22 on the view that Your Honours take.
23 JUDGE ORIE: Yes. How much time would it take you to -- to
24 reply? Are you only orally now applying for being allowed to reply, or
25 are you wishing to reply immediately? If that's the case, I'd like to
1 know how much time that would take.
2 MR. JORDASH: Well, we were hoping to raise the issue after the
3 witness had been dealt with because we understand that there is only
4 going to be one witness today, and we don't foresee that the witness will
5 take the whole session.
6 JUDGE ORIE: Yes. The witness is not -- there's not another
7 witness standby after -- if we finish this witness today.
8 MR. GROOME: Your Honour, I'm informed that the three videolink
9 witnesses live some distance from the location. The VWS needs one day to
10 bring each witness --
11 JUDGE ORIE: I fully accept that there were good reasons for
12 that. I just wanted to know whether the witness was standby or not. So
13 that's the case. Then we will consider your oral application to be given
14 an opportunity to reply to the Prosecution's response, and we will let
15 you know later today, and if there will be time for an oral reply today,
16 then if your request would be granted of course the time would be well
17 used for that purpose.
18 MR. JORDASH: Could I also raise one related matter just very
19 briefly which is for Your Honours' information that we will be seeking at
20 some stage to apply to have Dr. Eekhof give live evidence concerning the
21 provisional release, and we would also at the same time ask --
22 JUDGE ORIE: You mean concerning the medical condition of
23 Mr. Stanisic.
24 MR. JORDASH: Yes. And we were hoping that that could take place
25 perhaps at some point next week. So we're just asking -- we're just
1 raising the point now so Your Honours are aware of it. And then secondly
2 we'll also ask for Mr. Stanisic to be able to himself address
3 Your Honours on the issue particularly of problems in Belgrade. I'll
4 leave it as blank as that at the moment.
5 JUDGE ORIE: Yes. I take it that that should be done in private
7 MR. JORDASH: Your Honour, yes. Just for Your Honour's
9 JUDGE ORIE: Yes, so we know what to expect as far as
10 applications are concerned.
11 Then I have a few matters which I'd like to deal with. The first
12 one is, that I would like to put on the record which is exceptional for
13 the schedule in this case that we are sitting three days rather than two,
14 this week, today, tomorrow, and Friday.
15 For the next issue, I'd like to move into private session.
16 [Private session]
21 [Closed session]
1 [Open session]
2 THE REGISTRAR: We're back in open session, Your Honour.
3 JUDGE ORIE: Thank you, Madam Registrar.
4 Mr. Groome, your next witness to be called will be JF-017. The
5 Chamber has considered the application for protective measures and grants
6 them, reasons to follow, which means that the witness will testify in
7 closed session and under pseudonym.
8 MR. GROOME: Yes, Your Honour. The witness will be taken by
9 Ms. Friedman.
10 JUDGE ORIE: Yes. And for this purpose, we move into closed
12 [Closed session]
11 Pages 3833-3886 redacted. Closed session.
12 [Open session]
13 THE REGISTRAR: We're back in open session.
14 JUDGE ORIE: Thank you, Madam Registrar.
15 We'll first have a break. There are matters remaining for after
16 the break. I can imagine that you, Mr. Stanisic, and you, Mr. Simatovic,
17 may not be that much interested in hearing submissions on whether or not
18 we can ask questions to Dr. Eekhof and whether he should appear or not.
19 These are matters which you may not be interested. You may be interested
20 in it as well, perhaps you're more interested in the outcome than the
21 discussions themselves. Therefore, the Chamber certainly would not feel
22 offended if you would express a wish to rather not attend.
23 [Defence counsel and accused confer]
24 JUDGE ORIE: Mr. Jordash.
25 MR. JORDASH: Mr. Stanisic would like to stay for this
2 JUDGE ORIE: Okay. Then my -- yes, Mr. Bakrac.
3 MR. BAKRAC: [Interpretation] In that case, Mr. Simatovic will
4 also stay. We don't wish to complicate anything.
5 JUDGE ORIE: Yes. You're fully entitled. Of course, you're
6 exercising your right to be present.
7 The next question would be, it will not take very long, I take
8 it, Mr. Jordash.
9 MR. JORDASH: I would have thought if the application to be
10 allowed to reply would take less than five minutes if I'm -- if we're
11 allowed to reply, I don't imagine the submissions would be longer than
12 15 minutes.
13 JUDGE ORIE: Mr. Groome, would you agree with this expectation?
14 MR. GROOME: Yes, Your Honour, I think that sounds reasonable.
15 JUDGE ORIE: Then what we could do is we could take the full half
16 hour of a break or 20 minutes, which is the usual time for a second
17 break, but since we have plenty of time left, I -- I leave it in the
18 hands of the Stanisic Defence whether you would insist on a longer break
19 where what then follows will be relatively brief anyhow.
20 [Defence and accused confer]
21 MR. JORDASH: A short break would be fine.
22 JUDGE ORIE: We'll have a break and we will resume at
23 five minutes to 6.00.
24 --- Recess taken at 5.37 p.m.
25 --- On resuming at 6.00 p.m.
1 JUDGE ORIE: Mr. Jordash, you asked permission to briefly reply
2 to the Prosecution's response to your motion. You have an opportunity to
3 address the Chamber. Leave is granted to --
4 MR. JORDASH: Yes. Thank you very much.
5 JUDGE ORIE: I mean in the context of replying.
6 MR. JORDASH: Thank you. We would submit in relation to the
7 Prosecution response that the Prosecution response is, with all due
8 respect, unrealistic and for these reasons: The Prosecution suggests
9 that the better approach would be to have the provisional release motion
10 filed, and at that point the Trial Chamber can decide which questions are
11 pertinent to put to Dr. Eekhof. We submit that the issues that need to
12 be decided by Your Honours in relation to the merits of the provisional
13 release are clear and wholly -- almost wholly dependent upon questions
14 which need to be addressed to Dr. Eekhof, questions that we submit have
15 not been addressed and are not intended to be addressed by the weekly
16 reports by Dr. Eekhof to the Court which deal almost exclusively with
17 Mr. Stanisic's fitness to attend court or fitness to attend the
19 The issues which have arisen and continue to arise in relation to
20 the provisional release relate to, as detailed in Your Honours' decision
21 on provisional release, the latest decision of the 18th of December,
22 2009, concern, one, whether there is a too great a risk of deterioration
23 of Mr. Stanisic's health condition; two, and related to that, whether the
24 risks can be managed; and perhaps related to that, three, whether
25 Mr. Stanisic's health could in fact improve as suggested previously by
1 Dr. Eekhof and Dr. Petrovic if he was given an opportunity to resolve
2 certain personal problems in Belgrade
3 provisional release -- the merits of the provisional release application
4 turn upon. We cannot, in our respectful submission, file a provisional
5 release motion of any substance without having those questions addressed
6 again by current medical opinion.
7 If we were to be following -- if we were to follow the
8 Prosecution's suggestion, we would file a provisional release motion
9 which would simply be premised on our hope that Dr. Eekhof would confirm
10 Mr. Stanisic's fitness to attend -- sorry, Mr. Stanisic's fitness to be
11 granted provisional release. We wouldn't be able to answer or put to the
12 Chamber the most current medical evidence which will determine ultimately
13 Your Honours' decision.
14 The second point we would seek to address is the Prosecution's
15 comments and objections to the proposed questions which Your Honours will
16 find in Confidential Annex A of the Prosecution response, dated the 1st
17 of March, 2010. In addition to submitting that the Prosecution
18 response -- or the Prosecution proposal that the questions should not be
19 put to Dr. Eekhof until the provisional release motion has been filed, we
20 would respectfully submit that the objections that the Prosecution put to
21 the questions are equally unrealistic.
22 The first point we would make is this: That clearly what we're
23 dealing with when trying to address the complicated issue of provisional
24 release for Mr. Stanisic, we are dealing with a complicated overlap, we
25 submit, between medical opinion and Your Honours' legal discretion. What
1 I mean by that is the ultimate question for Your Honours when dealing
2 with the application for provisional release is, is the risk too great?
3 Is the risk that if we grant provisional release too great that there'll
4 be a deterioration? That is a legal question, a question for
5 Your Honours' discretion, but the question is answered, we submit, by
6 Mr. -- sorry, by the doctors, by the medical experts, addressing
7 precisely the same question, was is the medical risk, as far as we can
8 determine it, which arises from a grant of provisional release for
9 whatever period? So the question for Your Honours, the ultimate
10 question, is precisely the same question that the doctors need to
12 Now, clearly Your Honours have discretion to take from the
13 doctors' opinion what Your Honours think is relevant and important.
14 Clearly the ultimate question will be answered by Your Honours taking
15 into account what Your Honours perceive to be relevant and important from
16 the doctors' opinion, but that should not, in our submission, give rise
17 to a procedure where the Defence have to address the most narrow of
18 questions, avoiding the issues that Your Honours -- or if not avoiding,
19 then simply dealing with only a very narrow issue which is -- let me put
20 this differently.
21 The more we ask the doctors, the more that the doctors will say,
22 the more that Your Honours will be assisted. There isn't a risk, we
23 submit, that the questions when asked of the doctors, will somehow
24 compromise their independence. There isn't the risk that somehow they'll
25 deal with an issue which somehow compromises Your Honours' decision. The
1 more we ask the doctors the fuller their answers will be, and
2 Your Honours, of course, will be entitled to have regard to or disregard
3 whichever part of the opinion Your Honours think either is not useful or
4 oversteps the medical line.
5 The Prosecution's response seeks to narrow the issues -- or
6 narrow questions to such an extent that there is a real risk that the
7 questions that are asked and the answers that come from the questions
8 will simply be too narrow. The Prosecution's caution, which on one level
9 is understandable, is in our submission overly cautious. Dr. Eekhof is a
10 professional doctor. He can give his opinion. If he's not comfortable
11 about answering a particular question, he can indicate so. If he
12 addresses issues which Your Honours think are beyond his remit,
13 Your Honours will ignore the opinion. But to narrow down the questions
14 at this stage, in our submission, runs the risk of not getting the
15 fullest of information.
16 Those are our submissions.
17 JUDGE ORIE: Thank you, Mr. Jordash.
18 Mr. Groome, any -- yes, Mr. Hoffmann.
19 MR. HOFFMANN: Thank you, Your Honours. I want to be very --
20 very brief on these issues and not to -- to respond on all the details.
21 But we would like to point out that at least in case the Chamber grants
22 the further outstanding Defence request, the Simatovic Defence request
23 for adjournment already next Tuesday, we will be adjourned for a longer
24 break, and we were simply wondering at what point in time the Defence
25 wants to file their motion for provisional release because obviously we
1 will need a reasonable time to respond on that. And we do maintain our
2 position that at the moment there is no basis to put any questions to the
3 doctor because we don't know what is in the submission, for what time
4 provisional release will be requested. We have seen no guarantees. We
5 have seen no guarantees at the moment as in the past from the VMA, the
6 medical hospital in Belgrade
7 JUDGE ORIE: Mr. Hoffmann, not to be offensive, but is there any
8 realistic chance that the -- after we've always had these guarantees that
9 now it says, Certainly no, no, we are not going to? I mean, isn't this
10 too formalistic an approach? Let's try to get to the core of what
11 apparently is at stake, that is whether it's premature to put these
12 questions; and, second, whether the questions are phrased not in a way
13 that one would consider acceptable.
14 I really can't understand that you'd seriously introduce in this
15 discussion whether or not the VMA will provide the support needed. That,
16 in my view, is a short argument, and so let's try to get to the core of
17 what keeps you apart, and that's not whether the VMA will give all the
18 answers to all the questions you would like to put to them. Please
20 MR. HOFFMANN: Thank you. Just to clarify when I talked about
21 the guarantees, I was certainly not talking about the guarantees from the
22 state of Serbia
23 It is certainly about the issue that was raised by Defence, rightly so,
24 in the matter of what is the risk that is upon, you know, coming along
25 with any adjournment and any provisional release on the health of the
1 accused, and what is the possible impact on -- on these proceedings, that
2 is, is there a risk of further interruptions if the health of the accused
3 deteriorates in or during the provisional release? And in that context,
4 we do submit, as we have in the past, that obviously it depends on the
5 medical treatment and medical regime that is implemented in Belgrade
6 Let me respond on one other issue. The issue was raised of
7 narrowing down the questions or narrowing down the scope of questions. I
8 think we've been clear in our submission in the response that it's not to
9 narrow the scope of the examination of Dr. Eekhof, but it's to have
10 proper guidelines, to have very precise, clear questions which are
11 factually and not in legal terms based and put to -- to the medical
13 We've also put -- made that clear in the response that that part
14 is really in line with the Registry's submission of 14 December 2009 when
15 it was clearly stated by the Registry that the medical officer should not
16 be asked to speculate on any future treatment when on provisional
17 release, and that is part of what is proposed to be put to the medical
18 officer. In that sense, we will certainly invite the Chamber, as we've
19 done in the response, to set clearer guidelines on what kind of questions
20 should be put to the medical officer.
21 Thank you, Your Honour.
22 JUDGE ORIE: Thank you, Mr. Hoffmann.
23 Mr. Jordash, you were the moving party, weren't you?
24 MR. JORDASH: Yes. May I --
25 JUDGE ORIE: You initiate a third round?
1 MR. JORDASH: If I could take one minute to --
2 JUDGE ORIE: One minute to reply. Please.
3 MR. JORDASH: Thank you. My learned friend -- I have two points
4 in reply. First that my learned friends have recognised that the issue
5 is the risk to the trial process. That cannot be answered at this stage.
6 It can only be answered in part by Dr. Eekhof and the questions -- or at
7 least a formulation of the questions we have put to Dr. Eekhof. We don't
8 have the medical evidence now which says, What is the risk that
9 Mr. Stanisic's health will deteriorate?
10 The second point I'd seek to reply upon is this: That the
11 Prosecution's narrowing of the questions is, in our submission,
12 unhelpful. If one takes the core issue, as I've outlined and has been
13 agreed by the Prosecution, the risk deterioration -- and I ask Your
14 Honours to turn up the annex to the Prosecution's objections.
15 Paragraph 9 or question -- question 9 posed by the Stanisic Defence:
16 "Would there be any other means other than the present regime by
17 which any risk of deterioration might be managed? Would you please make
18 recommendations as to how the Trial Chamber might optimally be assured
19 that any deterioration would be observed and expeditious remedial action
20 taken to prevent any risk to the accused's recovery and the anticipated
21 trial schedule."
22 In our submission that goes to the core of the medical evidence
23 requested, and yet the Prosecution object to it. It doesn't, we submit,
24 require the RMO to make an assumption about the quality of care and
25 reporting in Belgrade
1 state of health? If he was to be transported to Belgrade, what treatment
2 would be necessary to prevent deterioration or to manage it or to reduce
3 it? It is that precise question which will give Your Honours the
4 evidence to make a, in our submission, judicious decision.
5 Those are our submissions in reply. Thank you.
6 [Trial Chamber confers]
7 JUDGE ORIE: The Chamber has no further questions to the parties
8 in respect of the application. We'll consider whether questions will be
9 put to Dr. Eekhof, as it was suggested -- requested by the Defence, in
10 his capacity as reporting medical officer, and we'll further consider a
11 matter which has not extensively been dealt with, that is, whether or not
12 we would ask Dr. Eekhof to give answers or give any evidence in this
13 respect orally, or whether we would ask him to put his thoughts on paper
14 if we would put the questions to him.
15 Yes, Mr. Jordash.
16 MR. JORDASH: Perhaps for Your Honours' information, the -- in
17 relation to Mr. Stanisic giving evidence, if I could indicate --
18 JUDGE ORIE: Yes.
19 MR. JORDASH: If I could indicate what our position would be and
20 our request would be.
21 JUDGE ORIE: Yes.
22 MR. JORDASH: We would ask that he be allowed to give a
23 five-minute -- sorry, give evidence for five minutes in which he would
24 outline principally what the problems are in Belgrade and why they are
25 significant to him and why in his mind they need to be resolved. It
1 would be principally for that purpose that we would like him to give
2 evidence. He can explain better than us basically.
3 JUDGE ORIE: Yes. Would that be evidence that would be real
4 evidence, so as to be given after having given a solemn declaration?
5 What is the view of the parties on the procedural aspects of hearing
6 this, because you can imagine that the line between argument and
7 providing factual information is thin in this respect. Therefore, I
8 would like to hear from you, first of all, Mr. Jordash, what your view on
9 that would be, and then I'd like to hear from Mr. Hoffman.
10 MR. JORDASH: Could I just take a moment.
11 [Defence counsel confer]
12 MR. JORDASH: In our view it would be more appropriate to be a
13 statement, not --
14 JUDGE ORIE: An unsworn statement?
15 MR. JORDASH: An unsworn statement. We won't be dealing in any
16 way -- or Mr. Stanisic will not be dealing in any way with the charges.
17 If Your Honours took the view that it should be a sworn statement --
18 JUDGE ORIE: I asked you --
19 MR. JORDASH: That's our view.
20 JUDGE ORIE: Yes.
21 Mr. Hoffmann.
22 MR. HOFFMANN: I guess our basic position would be if -- if, as
23 my learned friend just said, the accused would give evidence that the
24 Chamber's then asked to rely upon -- I think it's more than just a
25 statement, and he's then actually giving evidence, and that should be
1 treated as such, even if it's not related to the charges, but basically
2 he's giving evidence that Your Honours are asked to rely upon when
3 deciding upon provisional release.
4 JUDGE ORIE: Yes. So the parties disagree on this matter. You
5 can see how thin the lines are. In the common law system you would --
6 under normal circumstances you would require an accused to take an oath
7 before he takes the stand. In Germany
8 systems, where even without taking an oath but giving an affirmation
9 instead of an oath would nevertheless create all kind of procedural
10 complex issues. In the Netherlands
11 this is comparative analysis. I'll discuss with my colleagues how the
12 matter is in France
13 Any further --
14 MR. JORDASH: Only this, Your Honour, that in the past, for
15 example, Dr. Eekhof has always given an unsworn statement, so we have
16 dealt with it in that way in the past.
17 JUDGE ORIE: I always ask the parties whether this was the way in
18 which they -- I can imagine that you take a different position in view of
19 an accused compared to an independent expert, but --
20 MR. JORDASH: In relation to Mr. Stanisic, he has absolutely no
21 problem in giving sworn testimony on the issue, just so that Your Honours
23 JUDGE ORIE: That's clear. Any -- now I have got two Prosecutors
24 on their feet.
25 Mr. Hoffmann.
1 MR. HOFFMANN: Very quickly. When you said you will consider
2 whether or not how to ask Dr. Eekhof, I just wanted to put on the record
3 again that we have indicated in our response that we might have questions
4 as well to Dr. Eekhof which we have not included in the submissions, so
5 we would simply ask the Chamber to grant us an opportunity -- if it would
6 be a written submission to the medical officer that we get an opportunity
7 to also file some questions.
8 JUDGE ORIE: Yes, you would say the medical information needed,
9 you would know a few other matters which the Chamber would have to
11 MR. HOFFMANN: Exactly.
12 JUDGE ORIE: Thank you. That's clear.
13 Mr. Groome.
14 MR. GROOME: Yes, Your Honour. I have two matters. The first
15 relates to JF-019. Over one of the breaks I met with --
16 JUDGE ORIE: Let's first -- I think I was about to ask whether
17 there were any other procedural matters. Then it turned out that the
18 medical reporting had not finished yet. It has now been -- because,
19 Mr. Bakrac, I haven't heard you about it, but I didn't expect much input
20 from your side, but we have dealt with this one. Yes.
21 Then we move on to you, Mr. Groome.
22 MR. GROOME: So with respect to JF-019, Your Honour, the Chamber
23 asked me to consider what we would be our position as to how we should
24 proceed. I have met with the investigator who has most recently dealt
25 with the witness, and I don't believe in the Prosecution's view that
1 there is a proper factual or legal basis for us to -- to accommodate the
2 witness with a videolink in a place close to his home. There's no reason
3 to believe that he's unable to travel to The Hague.
4 I've reviewed also your -- the Chamber's order of the 4th of
5 February of 2010, and it seems to suggest -- quoting from that, the
6 operative paragraph of the situation we find ourselves in is:
7 "Wilful failure to comply with the terms of the subpoena
8 constitutes contempt --
9 THE INTERPRETER: Could the Prosecutor slow down for the
10 interpretation, please.
11 MR. GROOME: Yes. I apologise.
12 "Constitute contempt of the Tribunal pursuant to Rule 77 of the
13 Rules. Should you fail to comply with the Chamber" -- I'm sorry, "should
14 you fail to comply, the Chamber may order criminal proceedings against
15 you and may issue a warrant for your arrest."
16 And it seems that the Chamber is within its authority under
17 77(A)(iii) to do that. So I'm not sure whether the Chamber now having
18 heard my position expects the Prosecution to file some formal application
19 under Rule 77 or whether the Chamber will sua sponte take the next steps
20 to secure the witness's attendance here before the Tribunal.
21 JUDGE ORIE: Yes, I'm afraid the matter is more complex than -- I
22 mean, issuing an arrest warrant is one, and having it enforced is
23 another. But let's not at this moment -- you may also be aware that in
24 other cases Chambers have sometimes asked the Prosecution whether they
25 considered it wise to bring contempt charges against a witness who didn't
1 want to appear. This has been discussed in open session several times,
2 because usually a -- not always a case develops better with a lot of
3 contempt cases attached to it. But we'll consider the matter, and it is
4 on the record.
5 Any other matter?
6 MR. GROOME: Yes, Your Honour.
7 Just in terms of scheduling, next week the Prosecution has made
8 arrangements for JF-015 to appear to testify. The Prosecution
9 anticipates that it will take two hours to examine the witness, and
10 without hearing differently from my colleagues on the Defence, I estimate
11 that the witness in total shall take approximately five hours. This
12 would leave approximately two hours of hearing time next week. After an
13 exchange of e-mails, there is no witness that can complete his or her
14 testimony in that period of time. If the Court grants the additional
15 adjournment requested by the Simatovic Defence, this would mean that any
16 witness we might be able to bring to The Hague would have to return after
17 the adjournment or conclude their testimony.
18 Now we have the added request to incorporate into our schedule
19 next week a hearing, and the Chamber is considering whether to have such
20 a hearing and what the scope of that would be. Should the Chamber decide
21 to have such a hearing, it would be my belief that it very well could
22 consume the two hours. So I'm just seeking guidance from the Chamber.
23 Does it want me to try to secure an additional witness for next week, and
24 if the Chamber's unable to advise me today, I would ask if we could be
25 advised as soon as possible. It is becoming increasingly difficult to
1 schedule witnesses in this case.
2 JUDGE ORIE: Thank you.
3 Mr. Groome, it depends on various circumstances. First of all,
4 whether you would really need the full two hours for the first witness
5 and whether -- today we've seen that on an examination-in-chief of
6 75 minutes, the total of cross-examination was well less than one hour.
7 We also could observe today that the examination-in-chief covered quite a
8 bit of areas which were already covered by the 92 ter material and
9 therefore could have been done in less time. Now, it was not too
10 dramatic today because the next witness is not here, and it would only
11 have resulted in us adjourning today perhaps 15 minutes earlier, but if
12 it comes to the scheduling of witnesses, as problematic as we find it
13 next week, it seriously would need, and the Chamber would also look at
14 the statements, because there are statements taken from the first witness
15 to -- which is scheduled next week, whether really also in view of the
16 experience we have until now, whether we would really -- that those two
17 hours would really be required.
18 Then I did understand, but perhaps I am wrong, that there was
19 some kind of agreement on which would be the next witness for -- the
20 second witness for next week and whether the parties considered it be
21 feasible to hear the testimonies of both witnesses next week.
22 Correct me, I now then see a lot of e-mails which are sent to
23 Chamber's staff, especially since the Chamber encouraged the parties to
24 see whether they could resolve the matter. It therefore also depends on
25 how much time in cross-examination the Defence would need for the first
1 witness, and if there would be a second witness which would be considered
2 an appropriate witness to be -- to hear his evidence in relatively short
3 time, whether that could fit within those two days, yes or no.
4 Therefore, apart from scheduling other hearings, we might try to
5 find one hour somewhere else. I mean, we don't need witnesses. We just
6 need a courtroom if you would schedule a moment to hear Mr. --
7 Dr. Eekhof's further information. So, therefore, it is also a matter of
8 work as efficiently as possible, not now to say, Well, if we need now to
9 hear Dr. Eekhof, that would take 15 minutes. Perhaps you could find your
10 15 minutes elsewhere, other courtroom, other moment. Therefore, I'm --
11 I'm a bit concerned about we would then leave it to one witness, time
12 would be left, that would then not be used or only partially used if the
13 Chamber would decide to hear the information from Dr. Eekhof directly.
14 I'm really concerned -- instead of seeing how we can do as much
15 in the available time -- it -- I have some concerns in seeing when what
16 is left, what we could not do in the -- the time we have on our minds.
17 MR. GROOME: Your Honour, just so the record is clear, I'm just
18 asking the Chamber whether you think given all the things that are
19 happening now whether we will have time, because -- and I'm willing to
20 bring a witness, even if the witness is never called, but it's becoming
21 increasingly difficult to schedule witnesses. If the Chamber believes
22 that we will be able to take that witness even for a portion of their
23 testimony, I will do whatever I can to do that.
24 With respect to the witnesses that were discussed on the e-mail,
25 they were JF-019 and JF-036.
1 JUDGE ORIE: E-mail of when, exactly? So that I can check it
3 MR. GROOME: They were -- I believe last Friday was the e-mail.
4 One of them is the subpoena witness that we've just spoken about.
5 JUDGE ORIE: Last Friday, 26th. Let me just -- yes.
6 MR. GROOME: And one is -- JF-036 is also a subpoena witness. My
7 understanding of where we stand now is for the Defence to say how much
8 time that they think they will -- to use in those witnesses. I believe
9 I've heard from the Simatovic Defence how much time they will need. I
10 don't believe I've heard from the Stanisic Defence, but perhaps I'm
11 wrong. But in either case, Your Honour, with respect to your orders with
12 respect of both of those witnesses, the order states that it is the
13 Registrar who will contact the witness and tell the witness when they're
14 to be here. So I'm not even -- I don't believe that I even have the
15 authority to -- to work something out with the witness or call up the
16 witness. It seems to be clear from the Chamber's order that it's the
17 Registrar that will contact them about the precise date on which they are
18 to appear. And again, Your Honour, I'm not seeking to -- to spend less
19 time in the court. The two days a week that we work are very precious,
20 but the -- it is becoming increasingly difficult to have the full
21 co-operation of witnesses who are over and over again having to be
22 rescheduled. They find it very inconvenient. And as another matter,
23 Your Honour, even the third week in March we still don't know whether we
24 have to have witnesses here or not. One of the witnesses that is
25 scheduled has a heart condition and is concerned about that, so to the
1 extent that the Chamber can just assist us in giving us as much advance
2 notice as possible, I recognise that it's my responsibility to make the
3 best use, to fill the court hearing time with Prosecution witnesses, and
4 I will discharge that duty to the best I can, but I would be very much
5 assisted with as much advance notice about what the precise schedule is
6 as possible. Thank you.
7 JUDGE ORIE: The Chamber hopes to give you information by
9 MR. GROOME: Thank you, Your Honour.
10 JUDGE ORIE: Because we see the urgency of the matter. If I was
11 perhaps a bit critical, then -- if I was too critical, then I would
12 apologise for that.
13 MR. GROOME: You weren't, Your Honour.
14 JUDGE ORIE: I'll sleep it over this night to see whether I was
15 or not.
16 MR. GROOME: I think we all share the view that time here in this
17 courtroom is very precious and needs to be made use of.
18 JUDGE ORIE: Yes. And that can only be repeated again and again.
19 Any other matter?
20 MR. JORDASH: Only perhaps to assist with information, JF-015,
21 who is the next witness, is a different type of witness to the witness we
22 heard today. So cross-examination will be much more extensive. My guess
23 is that between the two teams we will take up 100 to 120 or 30 per cent
24 of the time taken by the Prosecution.
25 JUDGE ORIE: Yes, and the witness was scheduled for
1 examination-in-chief for how much time? I have got it downstairs on
2 my --
3 MR. GROOME: Two hours is the estimate that we provided,
4 Your Honour.
5 JUDGE ORIE: Two hours. Two hours, plus two hours and a quarter
6 of an hour would bring us into Friday. Because effective --
7 MR. GROOME: Your Honour, it's schedule for Monday, so would
8 bring us into Tuesday.
9 JUDGE ORIE: Yes.
10 MR. JORDASH: Maybe I'm being -- [overlapping speakers]
11 JUDGE ORIE: You're thinking of the witness -- I was thinking
12 about the witness of tomorrow. I said I have got my stuff on my desk so
13 I therefore --
14 MR. JORDASH: I'm sorry, I think I perhaps have been too
15 conservative about that witness. I think it could be two to three hours
16 of cross-examination in total.
17 JUDGE ORIE: In total. And then a witness envisaged for after
18 that would be? I mean, what's the witness which would be available and
19 which would -- I mean, the witness of today, for example, if we would
20 have really tried hard, we would have been able to hear his evidence in
21 approximately one session and a half at the most.
22 MR. GROOME: Your Honour, what I believe would be probably the
23 most reasonable witness, and I believe there 's no protective measures,
24 but just in an abundance of caution, I would just refer to him, he is one
25 of the witnesses who the Prosecution has just about completed its direct
1 examination, and it's just for the Defence to do cross-examination.
2 Hopefully, I would imagine they would have a good sense of how much time
3 they'll need having us nearly completed the direct examination.
4 JUDGE ORIE: Okay. Let me -- we are at a point where we are
5 trying to find solutions. Now, the worst place to find solutions is in
6 the courtroom, as every lawyer knows. Therefore, I encourage the parties
7 to see whether there's any way that we cannot only start the second
8 witness next -- for next week but which was in the interest of the
9 Simatovic Defence also to see whether we can conclude that witness,
10 because as I said before, the Chamber will not insist on the week after
11 that in calling witnesses for that one day which remains if we compensate
12 for the three days of this week.
13 So if a solution is found, fine. If no solution is found, then
14 we have to decide on the motion, and we'll see how matters develop.
15 Any other matter?
16 MR. GROOME: No, Your Honour.
17 Your Honour, maybe just one matter. I did raise this in an
18 e-mail with your staff just to recall for the Chamber that it did issue a
19 subpoena for JF-018 for the 17th, and I believe a specific date was
20 mentioned in that order. So whether an amendment has to be made to that.
21 JUDGE ORIE: Yes. We'll look at that. Any other matter? If
22 not, we'll -- yes, Mr. Bakrac, please.
23 MR. BAKRAC: [Interpretation] Your Honours, I'm concerned that
24 this whole discussion should go without me, so please permit me to say
25 something as well.
1 I'm grateful to my learned friend Mr. Groome for his
2 understanding to take into account our view on this witness JF-019 and
3 the time planned for the examination-in-chief. We consulted with the
4 Stanisic Defence, and we expect that the overall cross-examination would
5 not last longer than an hour or an hour and a half. So the whole thing
6 together would be about two hours or two hours and 15 minutes. So that
7 would be concerning JF-019.
8 As for JF-036, and that is a linkage witness, we would like to be
9 able to prepare for these witnesses better than we prepare normally.
10 That is also a subpoenaed witness. So I don't see why both of them need
11 to be brought in. If they're both being brought in on the subpoena, I
12 think 36 would be better, and there's no need to bring 19 at all.
13 As for the next witness, I think it would be better to do it on
14 Tuesday. We have submitted a request to our organs, because there is a
15 record of a conviction for that witness. We expect to receive that
16 criminal record, so we expect to receive that by Tuesday. So we would
17 not like to be placed in the position to question the witness without
18 having complete documentation at our disposal. And we appreciate the
19 efforts by the Trial Chamber and the Prosecution for their efforts to
20 make it possible for us to prepare as well as possible for each of these
21 coming witnesses.
22 Thank you very much for giving me an opportunity to speak.
23 JUDGE ORIE: Thank you, Mr. Bakrac.
24 Any other matter? I already informed the parties that there's a
25 fair chance that the Chamber will consist of two Judges tomorrow. I'm
1 unavailable and the other Judges, of course, will have to decide whether
2 it's in the interests of justice to -- to continue hearing the case.
3 We adjourn until tomorrow, the 4th of March, Thursday, quarter
4 past 2.00 in the afternoon, Courtroom II.
5 --- Whereupon the hearing adjourned at 6.44 p.m.
6 to be reconvened on Thursday, the 4th day
7 of March, 2010, at 2.15 p.m.