Tribunal Criminal Tribunal for the Former Yugoslavia

Page 3828

 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

Page 3829

 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

Page 3830

 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

 6     session.

 7             MR. JORDASH:  Your Honour, yes.  Just for Your Honour's

 8     information.

 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]

17   (redacted)

18   (redacted)

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21                           [Closed session]

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Page 3832

 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

11     session.

12                           [Closed session]

13   (redacted)

14   (redacted)

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Page 3833











11 Pages 3833-3886 redacted. Closed session.















Page 3887

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10   (redacted)

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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

Page 3888

 1     discussion.

 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.

Page 3889

 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

18     videolink.

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

Page 3890

 1     Dr. Eekhof and Dr. Petrovic if he was given an opportunity to resolve

 2     certain personal problems in Belgrade.  These are questions which the

 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

Page 3891

 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

11     address.

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

Page 3892

 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

Page 3893

 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

19     proceed.

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, that is taken that those will be granted or provided.

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

Page 3894

 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

12     officer.

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?

Page 3895

 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.  It simply says, What is Mr. Stanisic's current

Page 3896

 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

Page 3897

 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

Page 3898

 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, they have quite different

 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, an accused never takes an oath, but

11     this is comparative analysis.  I'll discuss with my colleagues how the

12     matter is in France and Zimbabwe.

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

22     know.

23             JUDGE ORIE:  That's clear.  Any -- now I have got two Prosecutors

24     on their feet.

25             Mr. Hoffmann.

Page 3899

 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

10     consider.

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

Page 3900

 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

Page 3901

 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

Page 3902

 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

Page 3903

 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.

Page 3904

 1             JUDGE ORIE:  E-mail of when, exactly?  So that I can check it

 2     again.

 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

Page 3905

 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

 8     tomorrow.

 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

Page 3906

 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

Page 3907

 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.

Page 3908

 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

Page 3909

 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.