1 Thursday, 22 April 2010
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 5.06 p.m.
5 JUDGE ORIE: Good afternoon to everyone.
6 Madam Registrar, would you please call the case.
7 THE REGISTRAR: Good afternoon, Your Honours.
8 Good afternoon to everyone in and around the courtroom.
9 This is the case IT-03-69-T, The Prosecutor versus
10 Jovica Stanisic and Franko Simatovic.
11 JUDGE ORIE: Thank you, Madam Registrar.
12 I first would like to inform the parties that the decision on the
13 request for postponement of the witness and to further postponement of
14 hearing the case has been signed and most likely has been filed by now,
15 that was the decision that was informally communicated with the parties.
16 Second, a matter of which I do not know whether we have to
17 further discuss it; and if so, perhaps we better do that in open session.
18 The Chamber is aware, on the basis of the recent medical report but also
19 on even more recent information, the problems that you, Mr. Stanisic, are
20 having at this moment. The Chamber highly appreciates that you are in
21 court; whereas, we are understand that even this afternoon, you had to
22 visit a specialist. I -- if there's any reason to further discuss at
23 this moment, of course, we'll do so. If you'd say, Matters are more or
24 less under control. I'm also thinking about the schedule for tomorrow.
25 As you may be aware, the Chamber would like very much to see whether we
1 can -- could hear the evidence of the next witness today and tomorrow,
2 and we have an adapted schedule drafted for tomorrow. There have been
3 consultations with the Stanisic Defence on the matter.
4 The Chamber is aware that, although we strictly adhere to
5 sessions no longer than 75 minutes and never a break which is shorter
6 than half an hour, that, nevertheless, it's -- it's a little bit more
7 hours than we usually have. To some extent, this is also caused by the
8 air traffic problems that Europe
9 Therefore, if there's anything further to be said about it, we
10 could do so; and then, if prepared, we could go into private session for
11 that purpose.
12 Mr. Jordash.
13 MR. JORDASH: I think probably just one thing which can I say in
14 an open session, which is that Mr. Stanisic is likely to receive some
15 kind of treatment on Tuesday, next, for the complaint which Your Honours
16 are aware of.
17 JUDGE ORIE: Yes.
18 MR. JORDASH: He's going to do his best tomorrow, but he's not
19 hopeful, given the pain, that he will be able to last all day. But he
20 will do his best.
21 JUDGE ORIE: Yes. As a alternative, we still have the videolink
22 option which is not a perfect one but which, under circumstances, might
23 be able to help us out. I'm -- so, therefore, if Mr. Stanisic would
24 consider that as an alternative for tomorrow, we would take care that
25 everything is in place.
1 MR. JORDASH: Certainly.
2 JUDGE ORIE: Yes. We will hear if anything further should be
3 said about it, Mr. Jordash.
4 Then the third issue, and I'll refrain from raising any issue
5 unless there is some urgency in the matter, is in relation to
6 Witness JF-49.
7 [The Chamber and Registrar confer]
8 JUDGE ORIE: I'm just looking at you. Should we deal with the
9 matter in private session or not?
10 MR. GROOME: Your Honour, it may be best. I'm not sure what the
11 Chamber is going to say, but ...
12 JUDGE ORIE: Okay. Let's -- out of an abundance of caution, it's
13 a very practical matter, but, nevertheless, the Chamber would move into
14 private session.
15 [Private session]
11 Pages 4326-4329 redacted. Private session.
17 [Open session]
18 THE REGISTRAR: We are in open session, Your Honours.
19 JUDGE ORIE: Thank you, Madam Registrar.
20 Mr. Groome, apart from your reminding me that we should turn into
21 open session, anything else before Mr. Jordash presents his oral motion?
22 MR. GROOME: Well, with respect to the continuing the exercise,
23 I'm happy to make the representation to the Chamber that if it makes
24 it -- that I would not speak with the witness from the time he begins to
25 testify, he is working with an interpreter now and an investigator and
1 they're simply going through the documents. I could make arrangement
2 that they're gone from my office when I return and I have no contact with
3 the witness.
4 JUDGE ORIE: Okay. If it comes to that, we'll then consider
6 Mr. Jordash, could you present your oral motion.
7 MR. JORDASH: Could I also clarify, along with the Simatovic
8 team, that we put the application in the alternative. If Your Honours
9 don't find in favour with the first, then the second would suffice, in
10 our submission.
11 The application is based on a non-disclosure of a Rule 66
12 statement. The Prosecution wrote to the parties yesterday. I think
13 Your Honours would have received a copy -- a copy of two documents, and
14 I'm referring now to the document which is entitled "Witness JF-054
15 Information Related to Direct Examination." And the first paragraph sets
16 out the Prosecution position in relation to where they've got to with
17 their investigation with this witness, and, as a consequence, it sets out
18 where they've got to as with -- as in their disclosure obligations.
19 The Prosecution state that because the witness has not cooperated
20 there is no prior ICTY statement in which his knowledge of Mr. Stanisic
21 and Mr. Simatovic has been comprehensively explored. And I quote:
22 "I, like you, am limited by what he has said."
23 I won't read the rest of that. But Your Honours can see that.
24 And I won't read the rest of it because we're in an open session.
25 JUDGE ORIE: Let me see.
1 MR. JORDASH: So am I --
2 JUDGE ORIE: I'm just -- I must say that I haven't seen what you
3 just read.
4 MR. JORDASH: [Overlapping speakers] ...
5 JUDGE ORIE: No I'm not blaming you for that. But being in court
6 on other cases the whole day, it's sometimes almost impossible to follow
7 the tens and tens of e-mails that we receive.
8 One second, please.
9 [Trial Chamber and Legal Officer confer]
10 MR. JORDASH: It's the two letters setting out the Prosecution's
11 intended approach with this witness --
12 JUDGE ORIE: Yes.
13 MR. JORDASH: -- dated the 21st of April, 2010.
14 JUDGE ORIE: Let me just have a look.
15 Yes, the Chamber has been informed about this letter.
16 MR. JORDASH: There are two letters, Your Honour, both of which
17 deal with the same subject.
18 JUDGE ORIE: Yes. We received a copy of one -- no, that was not
19 a copy but that was a memo, a confidential memo addressed to the
20 Trial Chamber dated the 21st of April.
21 Was this sent electronically as well, or was it sent purely
23 MR. GROOME: It was sent electronically to the Chamber and a copy
24 to Defence counsel.
25 JUDGE ORIE: Yes. Now, then there is a letter dated the
1 21st of April, 2010.
2 MR. JORDASH: And --
3 JUDGE ORIE: Which is addressed to Mr. Knoops and Mr. Bakrac. Is
4 that the one you have --
5 MR. JORDASH: That's the one, Your Honour, yes.
6 JUDGE ORIE: Could you take us to the relevant portion.
7 MR. JORDASH: The paragraph I was just addressing, Your Honours,
8 is the first paragraph dealing with --
9 JUDGE ORIE: Yes.
10 MR. JORDASH: -- the Prosecution's candid and frank admission -
11 and we're grateful for that - that the witness hasn't been interviewed in
12 relation to this case. And -- and ...
13 JUDGE ORIE: There is no prior ICTY statement in which his
14 knowledge of Mr. Stanisic and Mr. Simatovic has been comprehensively
16 MR. JORDASH: Yes.
17 JUDGE ORIE: Yes.
18 MR. JORDASH: And that's the basis of the application, that
19 whilst we appreciate, of course, the difficulties that the Prosecution
20 have had with this witness, the fact that a subpoena has to be issued
21 does not, in our submission, obviate the need for disclosure.
22 JUDGE ORIE: Disclosure of ...
23 MR. JORDASH: A statement taken with the accused in mind directed
24 towards the evidence the Prosecution wish to elicit, evidence which the
25 Prosecution say is probative of the charges. Instead what we've had is
1 the disclosure of massive material of previous statements - and I use the
2 term "statements" in a general sense - in which everything but the
3 accused's indictment has been explored; whilst Mr. Stanisic appears, I
4 think, three times in that hundreds and hundreds of pages. As the
5 Prosecution have conceded, there is nothing in those statements which
6 comprehensively explores what the witness knows about Mr. Stanisic.
7 And we submit that is completely unfair and puts us into an
8 impossible position. The situation was already, in our respectful
9 submission, very difficult because of the reasons we set out in our
10 application to adjourn the witness in the first place, which, of course,
11 I'm not seeking to re-litigate. But the situation, in our submission,
12 was already difficult because of time constraints and because of evidence
13 which we know exists and which we haven't, as yet, had access to.
14 But this position now is different, because we actually do not
15 know what the witness will say about Mr. Stanisic. And --
16 JUDGE ORIE: Perhaps not that much. I do not know. But, no, let
17 me first allow you to continue.
18 MR. JORDASH: Why do we say this matters in this case so -- in
19 this instance so much? One, because of the nature of this witness and
20 who he is and who he was and what he might be able to say. Two, and
21 related to that, if the Prosecution had taken a Rule 66 statement, that
22 process itself may have turned up all manner of exculpatory material
23 which we are entitled to before being placed into a position of having to
25 Thirdly, the process that has been suggested by the Prosecution
1 in relation to process they want to follow with this witness requires, in
2 our submission, that we know, in order to make cross-examination
3 effective, what it is the witness may say about Mr. Stanisic generally
4 but also what he might be able to say about the documents he's going to
5 be asked to authentic.
6 It may be enough for the Prosecution to have the witness look at
7 documents and authenticate him. But as they concede in this letter, we
8 may want to cross-examine on those documents.
9 JUDGE ORIE: On the content.
10 MR. JORDASH: On the content.
11 JUDGE ORIE: But there are several issues there, several -- no,
12 again I'm not going to interrupt you. Please -- please continue,
13 Mr. Jordash. I'll try to write down my questions for myself.
14 MR. JORDASH: Well, there's effectively three or four main --
15 four categories of documents. There's the first category which is a
16 category of documents the Prosecution wish to put into evidence. We have
17 absolutely no idea what the witness might be able to say about those
18 documents. The Prosecution hope that he can authenticate them, but we
19 don't know what he has to say about the contents. And so we don't know
20 whether the witness is going to say -- give evidence which is adverse to
21 the accused or exculpatory of the charges. So we will be cross-examining
22 completely blind.
23 The second category, a category of documents which the
24 Prosecution will not put into evidence but will just seek to have the
25 witness authenticate, we have the same problem. The Prosecution may not
1 wish to tender those documents but the Defence may wish to cross-examine
2 on them. And we have the same problem: We don't know what the witness
3 will say about them.
4 We have the additional problem which is that Exhibit 4158, which
5 was a single exhibit at one point dealing with a single date - it's a VRS
6 report - has now transformed into a number of documents which, we submit,
7 ought to have been subject to an application to add to the exhibit list.
8 I can go into that further but I -- I'll simply leave it at that at this
10 The third category are documents the Prosecution say speak for
11 themselves. These are potentially highly relevant documents. A number
12 contain the names and allegations -- sorry. A number -- a number of them
13 contain allegations against Mr. Stanisic which are probative of the
14 charges in some way. We do not know what the witness is going to say
15 about that. We don't if the witness knows anything about that evidence
16 or not, but the Prosecution will adduce them, have the witness
17 authenticate them, and we are left with the unenviable position of either
18 having to take a risk and cross-examine, not knowing what he is going to
19 say about them, or take a cautious approach, which is not to ask any
20 questions about them at all but leave the evidence on the record, looking
21 incriminatory, but perhaps not, if we had had proper disclosure as to
22 what this witness might say about them.
23 And the fourth category are the diaries which we have been
24 discussing in relation to this witness, but I won't go into that again,
25 but the same point as we made before aggravate this lack of disclosure,
1 we submit.
2 In short, this is, we submit, unprecedented, to call a witness of
3 this stature with effectively only a video standing as his
4 Rule 66 statement against the accused. That is it. This person with a
5 video. That is it. That's all we have. That's why we submit, at the
6 very least, we are entitled to have him give his evidence and we are
7 entitled then to protections which flow from the disclosure rules which
8 is a reasonable time to consider that evidence, investigate it, and
9 prepare for cross-examination.
10 Those are our submissions.
11 JUDGE ORIE: Thank you.
12 Anything to be added, Mr. Petrovic?
13 MR. PETROVIC: [Interpretation] Your Honours, very briefly.
14 I wish to say something that pertains to the last bit that my
15 colleague spoke of. The Simatovic Defence fully supports what my learned
16 friend Mr. Jordash said, and I would like to reiterate just one aspect
17 mentioned by him in his last bit.
18 In the letter that we received from the Prosecutor on the
19 21st of April, they say that they will rely on what this witness publicly
20 stated. What I would like to say additionally is that we need to know
21 what source this involves. The film called "One," which is the main
22 source, potentially, is an amalgam of statements by various persons where
23 one cannot tell where one speaker begins and the other one takes over.
24 It's a total mess in terms of trying to establish to which period of time
25 this pertains to which persons and so on.
1 So this is an edited film composed of a number of smaller parts
2 with narrator speaking and giving additional explanations about the roles
3 of people.
4 So this film, "one," as a source for what we can expect to hear
5 from this witness, is something that troubles us. It is hard to
6 anticipate based on this film what this witness is going to say.
7 Because, as I said, it is composed of segments which last ten or so
8 seconds and then they're interrupted by another segment, all of them with
9 different speakers.
10 So to base everything on this source alone is unfair. And this
11 film on its own is not an appropriate basis for us to gain some
12 understanding of what this witness could potentially say.
13 JUDGE ORIE: Now, before I give an opportunity to Mr. Groome to
14 respond, Mr. Jordash, if a witness who, by virtue of his position, is
15 likely to have all kind of information and refuses to talk to the
16 Prosecution, would you say, then, have you no witness? Is that your
17 position? Because you are relying on Rule 66, which says that all
18 statements taken, copies of statements, et cetera, that they should be
20 Now what the Prosecution tell us is that there are no statements.
21 Is there any way in which you could enforce a witness to give his views
22 or give his information to the Prosecution prior to having been called as
23 a witness?
24 MR. JORDASH: I think the issuance of a subpoena contains that
1 JUDGE ORIE: To talk?
2 MR. JORDASH: It's an obligation -- yes.
3 JUDGE ORIE: To appear before this Court.
4 MR. JORDASH: Well, to appear -- one could read into that an
5 obligation to give a statement. But ...
6 JUDGE ORIE: Any authority for that?
7 MR. JORDASH: No. I don't think there is authority for that.
8 JUDGE ORIE: Because that's, of course, you're blaming the
9 Prosecution for not providing with you statements; whereas, of course,
10 the Prosecution says we couldn't take any statement because the witness
11 was not cooperative. Therefore, I would expect you, then, to come up
12 with any authority which would show that the Prosecution can be blamed
13 for not presenting any statements.
14 MR. JORDASH: For us, the issue is not one of blaming the
15 Prosecution. We appreciate the difficulties that they -- they've had.
16 But that does not --
17 JUDGE ORIE: Then we come to my next question: If, under those
18 circumstances, the witness was not cooperative and has a duty to come and
19 testify and has to be subpoenaed for those purposes, well, if the
20 Prosecution has set out approximately what they considered they could
21 elicit from the witness which is an obligation under Rule 65 ter, would
22 that -- if we only have that, and if you say you can't blame the
23 Prosecution for that, and you repeatedly said, We do not know what the
24 witness is going to say. It could even be that the Prosecution does not
25 know what the witness is going to say. But consider him to be in a
1 position where he could provide relevant information and will focus, in
2 the question, on that.
3 What, then, is the legal basis for saying, This is not
4 acceptable, which is more or less what you are telling us?
5 MR. JORDASH: Well, the legal basis is Article 21, which is the
6 right of the accused to have prompt and in detail the information about
7 the nature and cause of the charges. And the cause of the charges means
8 the factual basis underpinning the charges.
9 JUDGE ORIE: But would that include evidence beyond disclosure
11 MR. JORDASH: But this is evidence which is not beyond the
12 disclosure rules. It's well within the disclosure rules.
13 JUDGE ORIE: Where is it -- where does it say anywhere that the
14 Prosecution, who apparently is not -- has not been in a position to
15 obtain any statements, but -- well, if you compare that with an ordinary
16 case, someone who was an eye-witness of the -- of the relevant event and
17 to call that witness who doesn't want to talk to anyone prior to that but
18 has an obligation a civil obligation to testify ...
19 MR. JORDASH: There is not -- well, there isn't a rule which says
20 that the Prosecution have a duty to force a witness to give a statement,
21 but there is a rule which says that if a statement is not obtained and
22 the -- and the Defence are put in a disadvantage because of that because
23 they do not have the evidential material which is going to be adduced by
24 a witness, that -- that will lead to an unfair trial.
25 JUDGE ORIE: Where is that rule? Well, any authority for that?
1 MR. JORDASH: Well, there's ample authority for -- well, one
2 particular authority which I can hand Your Honours now is authority from
3 the ICTY [sic], the Ntahobali case, the 1st of November, 2000
4 on Defence motion for disclosure of evidence. In our submission, it's
5 absolutely trite law that the Defence are entitled to both --
6 JUDGE ORIE: Okay. What does that decision in respect of the
7 duty to disclose evidence to the extent it has not yet been available to
8 the Prosecution?
9 Could you quote the -- the relevant part? Because I'm interested
10 in it -- very much in it. Because what you say is more or less: If a
11 witness refuses to talk to the Prosecution, you can't present him as a
12 witness anymore, even if there are good reasons to believe that the
13 witness has relevant information that could be elicited from him in
14 examination-in-chief and cross-examination. That's more or less the
15 bottom line of what you are telling us.
16 MR. JORDASH: Well, in my submission, respectively, this argument
17 isn't the point, because the point is that the witness is upstairs
18 cooperating with the Prosecution.
19 JUDGE ORIE: Yes. Okay. We have dealt with the first part of
21 Second is, now, this special procedure about -- you say we can't
22 cross-examine -- I mean, the alternative was - and I think Mr. Groome has
23 set out that clearly he is trying to save time. Otherwise what he would
24 have done is to put a document to the witness and say, You, having dealt
25 with so many documents in this area - and, of course, he will explore
1 that on the basis of his CV - is there any reason why [indiscernible] is
2 there anything you could tell us which would make you believe that this
3 is an authenticate document or a none-authenticate document without going
4 into any further details.
5 Now, whether or not, then, that document would be sought to be
6 admitted into evidence is a totally different matter. It could well be
7 that Mr. Groome - I do not know yet - that he says, Well, at least I
8 want, for the later stages of this case, I would like to have in evidence
9 that a document which was shown to the witness and a document which in
10 itself is not yet in evidence but perhaps at a later stage through other
11 witnesses we would learn about the content or the substance of the
12 document, but already at least for someone who knew signatures,
13 handwriting, formats of documents, already to have on the record that
14 that that person, perhaps even being totally unaware of the content of
15 it, has recognised handwriting or format, even being not familiar with
16 the content of the document.
17 I'm wondering what's wrong with that? And if you want to ask him
18 about the content, there are -- first of all, you can do that. But then
19 it would be not in response to what Mr. Groome has asked. If we're
20 looking at Rule 90, can you challenge the evidence well, apparently the
21 content is then not - that's at least how I understand it at this
22 moment - what Mr. Groome is intending to do.
23 The content is -- is not discussed and therefore is hardly need
24 of any challenge. If, however, you then would like, under Rule 90(H), to
25 cross-examine the witness on the content, what's there that would prevent
1 you from doing, even if it's not dealt with by Mr. Groome, then -- or
2 Mr. Weber, perhaps I should say? Even then if you think that the
3 evidence of the witness could support your case, you can ask him
4 questions about that.
5 But there -- the mere fact that there are two elements that
6 Mr. Groome has clearly indicated that he'll be very limited in what he'll
7 ask the witness about those questions. If you want to ask him more
8 questions and then to say, Yes, but then I don't know what the witness is
9 going to say, Mr. Groome, of course, could present the witness here in
10 court and do exactly at what is done upstairs apparently just by an
12 It's -- it's merely a time-saving exercise. That's at least how
13 I understand it. Not going into the substance in any way.
14 So, therefore, these questions, the first, disclosure obligations
15 instead of providing a 65 ter summary; and the second, saying all kind of
16 documents are put to him, you're not even asking questions about the
17 content. Perhaps Mr. Groome expects that the witness doesn't know
18 anything about the content.
19 MR. JORDASH: Well, if can I answer that in this way.
20 JUDGE ORIE: Yes.
21 MR. JORDASH: Firstly, the Prosecution --
22 JUDGE ORIE: No, perhaps I asked you a couple of questions in
23 anticipation of what Mr. Groome would respond do your oral motion.
24 Therefore, I would suggest that we now first give an opportunity
25 to Mr. Groome to respond to your oral motion and then, if need be, you
1 will have a second round to further explain.
2 Mr. Groome.
3 MR. GROOME: Your Honour, just a few points.
4 One is I am in exactly the same position as the Defence. This
5 man has repeatedly refused to meet with the Prosecution with respect to
6 this case; he has met with the Prosecution with respect to other cases.
7 I think a good analogy is a court witness. There is no requirement that,
8 before a witness can be called as a court witness, that person is
9 compelled to write a statement. Both parties are in the position where,
10 while they may know that a witness has relevant information, they do not
11 have the benefit of a full comprehensive statement.
12 With respect to the -- the interview, what we both do have and
13 what I -- what first made me realise that there was a witness of
14 relevance for this trial was that this witness gave an interview in a
15 documentary and just based on the few passages in the documentary it was
16 clear that because during the time -- dealing with the time-period that
17 this indictment covers, dealing with the issues that this indictment
18 covers, the few meetings that this witness had with Mr. Stanisic that he
19 describes in the documentary made it clear that he was an important
20 witness that should be subpoenaed and the Court should hear his evidence.
21 Now, I, too, would have loved or would have appreciated the
22 benefit of having spoken to him at length. He has never done that. I
23 did speak to the documentary maker in an effort to get the complete
24 interview of the -- of General Milovanovic. The documentary maker said
25 that most of the interview is in the documentary, cut up into different
1 segments and put where he believed it should be put, and that anything
2 that remained he discarded, he did not have. So all that we have from
3 that interview is what's the -- in the -- the documentary.
4 To answer Mr. Petrovic's point, the only thing that the
5 Prosecution seeks to rely on in that documentary is what the General
6 Milovanovic said himself.
7 One other point, Your Honour, just with respect to the documents,
8 the Prosecution is seeking to tender 54 documents -- no, I'm sorry,
9 11 documents where the Prosecution seeks to rely on the substance of the
10 document. We also seek to introduce -- we want to deal with 54 other
11 documents, and the only thing the Prosecution -- the only evidential
12 value that the Prosecution is putting forward with respect to these
13 54 documents is that to establish, as our burden of proof requires, that
14 Mr. Stanisic knew what was going on in Bosnia and had access to knowledge
15 of what was transpiring in Bosnia
16 So all we're seeking to introduce -- and these are documents that
17 were recovered from the state security archive, the organisation that
18 Mr. Stanisic headed, documents personally addressed to him in most cases
19 and in some cases simply to the State Security Service.
20 So all we are trying to establish is to be able to demonstrate to
21 the Chamber that on a regular basis Mr. Stanisic received reports from
22 the Army of Republika Srpska.
23 JUDGE ORIE: May I take it that by that you will establish that
24 reports were there which give his name as an addressee?
25 MR. GROOME: Yes, Your Honour.
1 JUDGE ORIE: [Overlapping speakers] ... whether he received that,
2 it's a different matter. You would agree on that?
3 MR. GROOME: [Overlapping speakers] ... Yes, Your Honour. Yes.
4 JUDGE ORIE: Yes.
5 MR. GROOME: There are some initials on the documents which we
6 have reason to believe may be either Mr. Simatovic's or Mr. Stanisic's
7 initials, but we will ask a further witness later on in the process to
8 see whether they identify that.
9 The only other point that I would make, Your Honour, is last week
10 Mr. Jordash asked me whether he could speak with General Milovanovic
11 before he testified, and I said that I would be happy, if Mr. Jordash
12 wrote a letter inviting General Milovanovic to speak with him, I would be
13 happy to give that to the General Milovanovic. I offered to do it in a
14 sealed envelope so if there was some -- you know, if he didn't want me to
15 be privy to the request or to the response. I haven't heard back from
16 Mr. Jordash. But I think I've been reasonable; I think I've done
17 everything that I can; I appreciate the unique circumstances that we are
18 in, but I'm in precisely the same circumstance as the Defence.
19 JUDGE ORIE: Mr. Jordash, a brief response, please.
20 MR. JORDASH: A brief response, if I may.
21 In our respectful submission, the Prosecution's comments are
22 based on a false premise, a completely false premise. They have the
23 witness upstairs. As much as they can take him through exhibits, they
24 can ask him about the comments in the video. They can take a statement
25 and they can disclose it. And choosing not to is --
1 JUDGE ORIE: Mr. Jordash, let's try to keep matters straight.
2 The Prosecution said that the Witness Milovanovic consistently
3 refused to meet with the Prosecution. Is that challenged? Do you accept
4 that as --
5 MR. JORDASH: No, that's not challenged.
6 JUDGE ORIE: Okay. Now, we all know that the witness arrived
7 yesterday evening, and that, from what we understand, there was no
8 conversation on the substance to that, therefore, now to state that the
9 witness is there, the witness is there, on the basis of a clearly defined
10 exercise which doesn't go to the substance but just to the matters which
11 could have been produced here in court.
12 Have you tried, Mr. Groome, to speak with the witness on any
13 other matter?
14 MR. GROOME: Your Honour, I -- so the record is clear, I showed
15 him the clips of video and I did ask him particular questions: How did
16 he know this; can you give me more precise information about this. And
17 it is my intention to draft a proofing note about what he has told me.
18 But, so the record is clear, I have ask him and he is -- has answered
19 questions related to the clips that I have showed him today.
20 JUDGE ORIE: So the -- to say that the witness has refused to
21 talk to you is valid, until today.
22 MR. GROOME: Until 9.00 this morning, Your Honour.
23 JUDGE ORIE: Until 9.00 this morning.
24 MR. GROOME: 9.15 to be precise.
25 JUDGE ORIE: Yes. And you have -- especially here where there is
1 no statement taken, have you informed Mr. Jordash about what you
2 discussed with him? Because I gained the impression that you had limited
3 yourself, perhaps, to the -- the witness background, the CV, which is
4 shortened and doesn't take then 30 pages of transcript, and those listed
5 of documents. But, apparently, you have spoken with him on other matters
6 as well on the substance.
7 MR. GROOME: I've showed him the clips, and I've asked for
8 comment or to explain certain matters on the clips. That's happened this
9 afternoon. I literally walked down, left him, and walked into court. It
10 is my full intention to provide all notes about anything that he has said
11 today to Defence counsel.
12 JUDGE ORIE: Okay. I interrupted you, Mr. Jordash, because I
13 want to have a clear factual view on this, on this element in the
15 Please proceed.
16 MR. JORDASH: That -- that really was the principle point which
17 is that we are going to receive a statement, which the Prosecution term a
18 proofing note, but which is, in effect, a Rule 66 statement a day before
19 a witness of this stature is called.
20 Secondly, dealing with the issue of the Defence interviewing the
21 witness, we would like do have interviewed this witness. But we received
22 a very clear timetable. Obviously not the Prosecution's fault, but
23 volcano's fault - if I can put it that way - that he was going to arrive
24 and the Prosecution would need a day and then we would be expected be to
25 be in court to cross-examine him. So we haven't had the time to
1 interview him.
2 I would like to interview him, especially in light of this
3 situation where the Prosecution have not asked him about various exhibits
4 except to see whether he would authenticate them.
5 And if I might just make a comment about this authentification
6 process, inevitably, in our submission, this witness will authenticate
7 documents not through just form but through substance. And in our
8 submission we're entitled to that substance and disclosure of that
9 substance so that we can think about it and take instructions from our
10 client prior to him coming to the witness box to give that evidence. He
11 will not come into the witness box tomorrow and simply say, I recognise
12 this, it looks like a VRS report. He will come in and say, I recognise
13 this, it looks like a VRS report, and I also remember the -- some of the
14 facts which underpinned this report.
15 That's what this witness will do. And, in our submission, by the
16 time this witness has gone through this huge volume of reports, we will
17 have a huge volume of evidence which is contained in the witness's mind,
18 not yet committed to paper, not disclosed to the Defence, leaving us
19 completely hamstrung.
20 Those are our submissions. Thank you.
21 JUDGE ORIE: Mr. Petrovic.
22 MR. PETROVIC: [Interpretation] Your Honours, by your leave, I am
23 a bit surprised that after 58 minutes of discussing this we have only
24 then find out that there was a conversation which took place with this
25 witness that was substantial.
1 In addition, yesterday, we sent a letter to Mr. Groome, asking
2 him to inform us whether the OTP spoke to this witness. I haven't
3 checked my mail in the last couple of minutes, but before that, we did
4 not receive anything in response to our request of last night.
5 So we are being prejudiced here. Mr. Groome is going to give us
6 this proofing note tonight. When are we to go over it? When are we
7 going to consult our client on this? We are supposed to start trial
8 tomorrow at 9.00.
9 Mr. Groome was supposed to tell us this an hour ago at the very
10 beginning of this hearing, and that would have saved us this effort.
11 Thank you, Your Honours.
12 JUDGE ORIE: Mr. Jordash, have you had any time - and I'm just
13 trying, again, to find what Mr. Groome said about your wish to interview
14 the witness.
15 When did you seek to interview the witness?
16 MR. JORDASH: I raised this issue with the Prosecution on the
17 last court session, and my -- our intention was to write a letter
18 accordingly. Then we were informed about the flight difficulties and so
19 we sat and waited until the timetable was clear before making a request.
20 And it became very quickly apparent that the witness was going to arrive
21 very late. And so once that -- once we had certainty about that, then it
22 was clear that we wouldn't have time.
23 JUDGE ORIE: Yes. But you didn't seek to interview him at any
24 earlier stages?
25 MR. JORDASH: We --
1 JUDGE ORIE: Well, the witness was on the 65 ter witness list for
2 a while, although it's clear to the Chamber that you considered the time
3 when he was scheduled now to be too short.
4 But I'm asking, therefore, whether at any earlier stage you
5 sought access to this witness for the purposes and -- of an interview.
6 MR. JORDASH: No. Because the reason -- and if I may explain the
7 reason, the reason for that is as soon as we were -- we intend to
8 interview witnesses, but we wait until they're brought to The Hague and
9 are in the Prosecution or WVS custody. And at the point it is an
10 efficient use of our resources to interview them here, rather than travel
11 into the former Yugoslavia
12 So that was our approach -- we understood that that was the
13 approach this -- the ICTY generally took or that was taken at the ICTY
14 generally, if I may put it that way.
15 Could I just add one thing, Your Honours.
16 JUDGE ORIE: Yes.
17 MR. JORDASH: If Your Honours are completely against us on the
18 first two, then what would be useful is that the witness is adjourned for
19 a day at least to allow us an opportunity to interview him. Because
20 there are a number of documents the prosecution wish to put in, which
21 they say speak for themselves, which implicate the accused. And it would
22 be useful to know what the witness has to say about those documents.
23 So that would be our third limb, if you like, in our application.
24 JUDGE ORIE: Mr. Petrovic, do you join in the third limb?
25 MR. PETROVIC: [Interpretation] Your Honours, with all due
1 respect, the third request doesn't make too much sense, at least not from
2 our point of view.
3 If this witness is here to testify, if he is heard in
4 examination-in-chief, he also has to be cross-examined, irrespective of
5 the fact that this concerns the interview with the witness. The fact is
6 that the witness has already answered a substantial questions put to him
7 by the OTP. When we see what was answered, we can then discuss the
8 situation. But the situation is now different than it was when we
9 entered the courtroom earlier today.
10 I don't think that one day we'll solve anything. If there was an
11 interview with the witness and if the witness has information that he
12 shared with the OTP, then we come to the initial request by Mr. Jordash
13 and that is for us to be given adequate time to examine the statement of
14 this witness.
15 We were simply not informed well in time as to what was going on
16 with the witness, that he was interviewed, and that he shared information
17 with the OTP.
18 [Trial Chamber confers]
19 JUDGE ORIE: The Chamber wants to consider the application, the
20 request, and hopefully will deliver its decision in -- oral decision,
21 just this position, in the next 10 to 15 minutes. Whether we can reach a
22 decision in that period of time is still uncertain; but if not, we'll
23 certainly inform the parties.
24 But we'd like to consider it.
25 Mr. Groome, one very practical question: Have the witnesses,
1 which are scheduled for next week, have they arrived already in
2 The Hague
3 MR. GROOME: One is due do arrive tomorrow morning. But,
4 Your Honour, because of that particular situation of that witness, it
5 is -- the person is going to remain here until the security situation can
6 be assessed from here after he testifies. So there is some flexibility
7 with the next witness.
8 JUDGE ORIE: Yes.
9 MR. GROOME: And, Your Honour, just one thing: While the Chamber
10 is deliberating, I'm happy to meet with Defence counsel right now and go
11 over the notes that the man -- what General Milovanovic has said, and I
12 will type them up as soon as I leave here. But I'm more than happy to --
13 I mean, the ink is still wet on these notes; I'm happy to provide the
14 information that he's provided during the break.
15 JUDGE ORIE: Well, whatever our decision will be, that needs to
16 be done anyhow. So why not have it done in the next 15 minutes.
17 Are the parties available to meet with Mr. Groome so as to be
18 informed about the results of what seems to be a meeting which -- well,
19 was at least limited in time?
20 We'll deliberate on the matter, and hopefully we'll be back in 10
21 to 15 minutes.
22 I'm aware that this goes beyond the usual 75 minutes, which
23 Mr. Stanisic is medically reported to be able to -- to be in court.
24 We stand adjourned.
25 --- Recess taken at 6.08 p.m.
1 --- On resuming at 6.38 p.m.
2 JUDGE ORIE: It took a while to consider the oral motion.
3 I'll just briefly state what our decision is; reasons in more
4 detail to follow.
5 The request that the examination of the witness would be
6 postponed entirely is denied.
7 The request that the cross-examination would be postponed that at
8 least additional time would be granted to the Defence to prepare for
9 cross-examination is -- that request is granted, as matters stand now,
10 until next week, Wednesday.
11 Now, part of that element of the motion relied on what the
12 Defence expected the witness would do. To some extent, of course, that's
13 guessing. But we would know after his examination-in-chief whether did
14 he what you expected him to do, Mr. Jordash. And, of course, the
15 Prosecution is now aware that if you ask certain questions of a witness,
16 then he might give the kind of testimony where you said that you would
17 have difficulties in -- in preparing for cross-examination, if he would
18 not stick to what -- purely authenticity on the form or -- so -- so it's
19 very difficult for the Chamber, at this moment, to already definitively
20 decide, determine, whether the time granted until Wednesday would be
21 sufficient or not. Therefore, the Chamber may - and I emphasise "may" -
22 reconsider that time-limit once we've heard the testimony elicited in
24 That's the ruling of the Chamber on the matter. So, therefore,
25 we would start tomorrow morning at 9.00.
1 Now, may I take it that you have fully briefed, Mr. Groome, the
2 Defence on what the conversation with the witness has resulted in, the
3 conversation that took place this morning?
4 MR. GROOME: I fully briefed Mr. Jordash. Mr. Petrovic declined
5 and said he would wait until I write it up and produce it in written
7 JUDGE ORIE: Mr. Petrovic, any reason for this approach, not
8 wanting to be informed unless you have it on paper?
9 MR. PETROVIC: [Interpretation] Your Honours, during the break I
10 spoke to my client, which means that I spent most of the break time
11 during [as interpreted] his cell. And when I arrived here, my learned
12 friends had already been talking for a while. That's why I wanted
13 everything to be put on paper so that I may look at it at my own leisure,
14 not that I didn't want. Simply that those were the circumstances.
15 That's my client wanted, and this is how I wish to proceed, in order to
16 be -- provide my client with the best possible advice.
17 JUDGE ORIE: Mr. Groome, are you willing to repeat what you said
18 to Mr. Jordash, to Mr. Petrovic.
19 MR. GROOME: Yes, Your Honour. I've actually offered to do that
20 during the break as well.
21 JUDGE ORIE: Yes. Is that offer accepted, Mr. Petrovic? You
22 didn't mention it.
23 MR. PETROVIC: [Interpretation] Your Honour, I asked Mr. Groome to
24 put everything on paper. I did not think that it would be too much to
25 ask and that it is in the spirit of good practice. If that is a problem,
1 I'm prepared to listen to Mr. Groome. I don't see a problem. If he
2 spoke with my learned friend, why can't he put everything on paper as it
3 is customary before this Trial Chamber?
4 If he, however, is not prepared to provide everything in writing,
5 I'm prepared to sit down and listen to what he has to say. So much from
7 JUDGE ORIE: Mr. Petrovic, I think it's common knowledge,
8 especially among lawyers, that an oral conversation takes less
9 preparation time than to put things on paper.
10 You have an opportunity, I take it, Mr. Jordash, that
11 Mr. Petrovic, if he would be briefed orally by Mr. Groome, that he would
12 have an opportunity to compare with your information, whether he missed
14 MR. JORDASH: Yes --
15 JUDGE ORIE: -- compare the information you had received.
16 Mr. Groome, the Chamber -- one second.
17 [Trial Chamber confers]
18 MR. GROOME: Your Honour, just so it's clear.
19 JUDGE ORIE: Yes.
20 MR. GROOME: I still fully intend to put my notes in writing and
21 disclose them, it's just to give them the benefit of the additional time.
22 And there's one collateral matter, if I could raise with the
23 Chamber before we adjourn. Just -- I want to ask the Chamber to consider
24 something overnight.
25 JUDGE ORIE: Yes.
1 Now, Mr. Groome, the Chamber leaves it to you and Mr. Petrovic
2 whether or not to inform Mr. Petrovic in writing or by telling him what
3 you learned from the witness.
4 The Chamber, therefore, is not putting any pressure upon you to
5 produce the written notes any earlier than tomorrow morning at the start
6 of court. If you want to write them down between 5.00 and 6.00 this
7 night, it's entirely up to you.
8 Mr. Petrovic, it's for you to choose whether you want to wait
9 until Mr. Groome has put them on paper. If you want to have the
10 advantage of knowing it earlier, then you should listen to Mr. Groome.
11 The Chamber will not accept any complaints about having received
12 the information late, if you would not -- if would you prefer to wait
13 until it's written down, because you can have that information by far
15 The Chamber, of course, would like to receive, then, tomorrow, at
16 the start of court, a brief written briefing note.
17 MR. GROOME: Yes, Your Honour.
18 JUDGE ORIE: Yes.
19 Before I give you an opportunity to address us, is the ruling
20 clear? Does it raise any further questions?
21 Then may I also take it that we'll not have the lengthy session
22 tomorrow which we expected. It may perhaps depend on what you find if
23 you go upstairs again, Mr. Groome.
24 I don't know whether the beginning of the exercise you engaged in
25 with the witness, whether that -- whether that seems to be -- to bring
1 some results or not.
2 MR. GROOME: I think it will, Your Honour. And I actually hope
3 to finish in less than two and a half hours.
4 JUDGE ORIE: Yes.
5 Mr. Groome, in view of the developments, I can tell you that, for
6 the Chamber, it -- well, some weight - perhaps considerable weight - was
7 given to the fact that you had interviewed the witness this morning and
8 went beyond what the Chamber was aware of at the time. If you would want
9 to further interview the witness on any matter, apart from whether that's
10 wise to do after so many hours, because the witness may have needed his
11 concentration for quite some hours, then you should inform immediately,
12 without any delay, the Defence on any further briefing.
13 Are there any further questions in relation to this matter?
14 Any further observations?
15 Mr. Groome, you wanted to sleep us over something this evening.
16 That's --
17 MR. GROOME: Yes, Your Honour, General Milovanovic had offered to
18 remain in The Hague
19 documents that the Chamber is aware of and speak with other teams, other
20 Prosecution teams. I would ask the Chamber to consider, if he will be
21 here up until next Wednesday, I will not or no member of the
22 Stanisic/Simatovic team would have contact with him, but would the
23 Chamber consider allowing other Prosecution teams to sit down for the
24 purpose of reviewing those new documents that are now in our possession?
25 It would allow him to at least make productive use of the four days in
2 JUDGE ORIE: Mr. Jordash.
3 MR. JORDASH: Can I just indicate that we will seek to interview
4 this witness on Monday or Tuesday, so I put that into the Court's hands.
5 [Trial Chamber confers]
6 JUDGE ORIE: Mr. Jordash, I just verified what we had discussed,
7 as a matter of fact, among the Judges before, about the possibility of
8 interviewing the witness after he would have given his
9 examination-in-chief and whether we would have to decide on that,
10 because, as you know, the usual -- well, I couldn't say rule, but the
11 good practice is that there would be no contact with witnesses after he
12 has taken a solemn declaration. And we discussed that also in view of
13 the way in which you had phrased your motion. Because the third limb, as
14 you called it, it was our recollection that you said, If you would not
15 agree with one of the other two, then I would like to have a day in order
16 to ... and I now verified whether we deliberated on the right basis and
17 that's actually what you said. You said, If are you completely against
18 us on the first two, what would be useful is that the witness is
19 adjourned for a day, at least, to allow us an opportunity.
20 We thought that we didn't have to consider that request anymore
21 because we were not completely against you on the first two, because we
22 granted the second one. And under those circumstances, the Chamber is
23 not inclined to make an exception to the rule that you would have an
24 opportunity to interview him.
25 Now, I don't think that there will be any chance to interview him
1 before tomorrow morning, 9.00, because we would not have disallowed you
2 to interview him then, so if you find -- but I see it's close to 7.00 --
3 but the Chamber will not make an exception to that good practice.
4 MR. JORDASH: Your Honour, yes. I hope my application didn't
5 sound ungrateful.
6 JUDGE ORIE: No, not at all. But I just wanted to verify whether
7 what we did, without having the advantage of a transcript available to
8 us, whether our recollection of how you phrased the third limb, where
9 Mr. Petrovic was not that much interested in the third limb, whether our
10 recollection was right or whether we will to reconsider that. There is
11 no need to reconsider it.
12 MR. JORDASH: No, it was right.
13 JUDGE ORIE: Now, what I would like to know from the Defence is
14 whether -- whether they would oppose that these days are used for
15 interviewing the witness, but not by anyone of the Stanisic/Simatovic
16 team, and with a clear commitment that no information - at least not for
17 the next week - will be received as a result of that by any matter of the
18 Stanisic/Simatovic team. Therefore, a Chinese wall that should be
20 Any objections against that? We still have - and I think that
21 that's clear already from our earlier decision - it could well be that at
22 any later stage, not knowing yet what is in the newly received documents,
23 not knowing anything, that the Prosecution might request to re-call the
24 witness at a later stage to seek further evidence from this witness on
25 this still -- on this - could I call it a black box at this moment - not
1 knowing what is in there.
2 MR. JORDASH: If Your Honours' query concerns -- let me put it
3 differently. We would be content with any further interviewing provided
4 it didn't touch upon the issues which the witness will testify to in this
6 JUDGE ORIE: Yes. So if we're talking -- it might be very
7 difficult, if you are going through a diary, that you suddenly come
8 across a matter -- if it is translated yet, or I don't know how you are
9 going to technically do that -- if you come across a matter and -- which
10 might touch upon an element. But we do not know whether those who are
11 interviewing the witness, then, I do not expect them to be fully briefed
12 in ever respect on what the relevant issues of this case are but, rather,
13 focus on their cases and then not to community in any way with the
14 Stanisic/Simatovic/Prosecution team.
15 If that -- if such a commitment would satisfy you, Mr. Jordash.
16 MR. JORDASH: Yes, it would satisfy us. Thank you.
17 JUDGE ORIE: Yes.
18 Mr. Petrovic.
19 MR. PETROVIC: [Interpretation] Just briefly, this Defence does
20 not have any doubts that the OTP team will behave in the way you have
21 just explained.
22 However, our assumption is that the teams interested in speaking
23 to the witness will broach subjects and in view of the ongoing trials can
24 not differ much from the expected topic of evidence by
25 General Milovanovic before this Trial Chamber. If the Trial Chamber has
1 decided that before witness -- Wednesday he can speak with other teams, I
2 would kindly ask for our Defence team - and I believe that the Stanisic
3 request will be the same - to be informed or, rather, to be provided the
4 proofing notes of those meetings, because we would like to see what was
6 If the Trial Chamber does not deem this to be adequate, at least
7 we would like to be informed about the course of the interview and
8 whether subjects broached upon in the interview would be of some
9 importance for the proceedings going on before this Trial Chamber.
10 Thank you very much.
11 JUDGE ORIE: Mr. Jordash.
12 MR. JORDASH: We agree with that suggestion.
13 JUDGE ORIE: Mr. Groome, was that agreeable to you?
14 MR. GROOME: Yes, the Prosecution's agrees to this Chinese wall,
15 the prosecution agrees to provide a statement -- any statement that's
16 produced, and the Prosecution notes that the initial interview is simply
17 to understand conventions used, note-taking, page numbering, and things
18 like that. So it may not even touch upon any specific issue related to
19 any case for some time.
20 JUDGE ORIE: And would you be opposed to, again, sharing that
21 information with the Defence. Because I can imagine if you really go to
22 the substance of the matter, that you could then cross-examine the
23 witness on the matter and then later say that there's no need to recall
24 him anymore. That would create, perhaps, a bit of an odd situation.
25 But, Mr. Groome, if you say, We'll limit ourselves rather to --
1 rather superficial matters without going into -- deeply into the
2 substance, I can imagine that you would share that, and you committed
3 yourself to sharing that with the Defence then?
4 MR. GROOME: Just so that it's clear, what I would share,
5 whatever draft statement, whatever stage it's at on Tuesday, I will
6 provide that. And when it's ultimately finalised, I will provided that.
7 JUDGE ORIE: Yes. And, of course, I take it that you would keep
8 the possibility open to re-call the witness if that new material -- if
9 the black box, once opened, would create entirely new situations.
10 MR. GROOME: Well, again, Your Honour, if he doesn't cooperate
11 with this team -- I mean, if I thought it required a subpoena, that it
12 was that important, then I would make certain applications.
13 JUDGE ORIE: Yes. So, therefore, other OTP teams can interview
14 the witness in relation to what I briefly called the black box, the
15 diaries. They should avoid and abstain from any contact with the
16 Stanisic/Simatovic team on the results of that. Not one word. A firm
17 Chinese wall. What they'll do is they'll inform, preferably in written
18 form, the results of that as -- well, let's say, Tuesday, 5.00, to the
19 Defence teams in Stanisic/Simatovic.
20 That's, then, the ruling of the Chamber.
21 Anything else?
22 MR. JORDASH: Do we start tomorrow in the morning, Your Honour?
23 JUDGE ORIE: We'll start tomorrow at 9.00 in the morning.
24 MR. JORDASH: Thank you.
25 JUDGE ORIE: That would be in courtroom -- let me just check.
1 [Trial Chamber and Registrar confer]
2 JUDGE ORIE: We adjourn. And I highly appreciate the cooperation
3 of interpreters and technical staff, transcribers, but also security, for
4 staying with us for such a long time where it was scheduled to stop
6 We stand adjourned, and we resume tomorrow morning at 9.00 in
7 this same courtroom.
8 --- Whereupon the hearing adjourned at 7.05 p.m.
9 to be reconvened on Friday, the 23rd day of
10 April, 2010, at 9.00 a.m.