Tribunal Criminal Tribunal for the Former Yugoslavia

Page 8964

 1                           Wednesday, 10 November 2010

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 2.17 p.m.

 5             JUDGE ORIE:  Well, we are in session.

 6             Madam Registrar, would you please call the case.

 7             THE REGISTRAR:  Good afternoon, Your Honours.  Good afternoon,

 8     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             In order to continue the cross-examination of the present

13     witness, we will move into closed session.

14             Before we'll hear the testimony of the next witness, also in

15     closed session, there are a few procedural matters I'd like to raise and

16     which we prefer to deal with before we start with the next witness.

17             There are a few other procedural matters which might have to wait

18     until Thursday, most likely we'll have some time left Thursday for

19     procedural matters.

20             And we turn into closed session.

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Page 8965











11 Pages 8965-8981 redacted. Closed session.















Page 8982

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19                           [Open session]

20             THE REGISTRAR:  We are in open session, Your Honours.

21             JUDGE ORIE:  Thank you, Madam Registrar.

22             I would like to deliver a short decision on the admission of

23     intercepts tendered through Witness JF-002.

24             On the 11th of October, 2010, the Trial Chamber received

25     submissions from the parties regarding the admissibility of intercepts

Page 8983

 1     tendered through Witness JF-002.  Having considered those submissions,

 2     the Trial Chamber decides to admit those intercepts to which the Defence

 3     raised no objections.  These were MFIs P619 through 670, and MFIs 672

 4     through 715, as well as the intercept authentification spreadsheet

 5     MFI P618.  The Trial Chamber admits these documents into evidence.

 6             And if there's any need, Mr. Groome, to have any of them under

 7     seal, the Chamber would like to be informed as soon as possible so that

 8     it finally can attribute either status of a public document or under

 9     seal.

10             MR. GROOME:  Yes, Your Honour, we will do that.

11             JUDGE ORIE:  Yes, could we hear from you --

12             MR. GROOME:  We can do that before the end of the week.

13             JUDGE ORIE:  Before the end of the week.

14             Madam Registrar, therefore, the -- these documents, although

15     admitted, have not yet received the status of public documents, and

16     Mr. Groome will revisit the matter by the end of this week, which means

17     by -- would that be tomorrow, Mr. Groome?  The end of the week on paper

18     ends on Friday; in court, it ends on Thursday.

19             MR. GROOME:  I was thinking Friday, Your Honour.

20             JUDGE ORIE:  Yes, then you will make submissions in a way

21     appropriate to the content of your report.

22             MR. GROOME:  Yes, Your Honour.

23             JUDGE ORIE:  In the submissions by the Prosecution, the

24     Prosecution indicated that it would further follow up with the

25     authorities of Bosnia and Herzegovina on the intercept MFI P671 and the

Page 8984

 1     related intercept monitor note MFI'd P716.  The Trial Chamber will delay

 2     its ruling on these two documents.

 3             And this concludes the decision of the Chamber.

 4             The next item I would like to briefly touch upon is scheduling

 5     issues.  I already briefly raised yesterday in court the concerns of the

 6     Chamber in relation to the scheduling of witnesses, also in view of the

 7     most recent medical reports the Chamber received.

 8             Three items.  The first one, next week commencing

 9     15th of November, Mr. Groome, three witnesses are scheduled for that

10     week:  Mr. Kirudja, still to be cross-examined by the Simatovic Defence;

11     Witness JF-030; and JF-053.  The Chamber wondered whether it is a

12     realistic scheduling.  But before going into any further detail, the

13     Chamber would like to know what the estimates are, Defence estimates, for

14     the time needed in cross-examination.

15             MR. GROOME:  Your Honour, if I could say on this point --

16             JUDGE ORIE:  Yes.

17             MR. GROOME: -- Mr. Jordash has very helpfully given us estimates

18     after this last notification was given out for the remainder of the case,

19     and we have included them in this week's notification.  And based on

20     that, I think it's clear that the schedule as notified last week is

21     unrealistic, and we are revising it today.  We have not heard from the

22     Simatovic Defence.

23             JUDGE ORIE:  Perhaps if the Simatovic Defence would also provide

24     relevant information to Mr. Groome so as to enable him to review his

25     scheduling and the assessments on which they are based.

Page 8985

 1             MR. PETROVIC: [Interpretation] Your Honour, we will provide our

 2     own assessments by the end of this week for the time needed for the

 3     cross-examination.

 4             JUDGE ORIE:  Yes, but perhaps for the cross-examination of

 5     Mr. Kirudja it would be helpful to already have that assessment.

 6             MR. PETROVIC: [Interpretation] As far as Mr. Kirudja is

 7     concerned, we will need up to an hour.  About an hour.

 8             JUDGE ORIE:  Mr. Jordash.

 9             MR. JORDASH:  May I also indicate that I'll be applying for leave

10     to re-open cross-examination for Mr. Kirudja to put to Mr. Kirudja some

11     issues relating to the UN hostage crisis.  We've received documents

12     and -- since we cross-examined Mr. Kirudja, and I think it would be

13     useful if we were able to cross-examine him for up to an hour.

14             JUDGE ORIE:  Yes, the application is on the record now.

15             Mr. Groome.

16             MR. GROOME:  I've indicated to Mr. Jordash that I would not be

17     opposing that application; he explained his reasons for me.  And if the

18     Chamber would feel that it would assist the Chamber hearing Mr. Kirudja

19     on these points, the Prosecution will not object.

20             JUDGE ORIE:  Therefore, you will, in anticipation of the Chamber

21     approving where the parties seem to agree on appropriately further

22     cross-examining Mr. Kirudja, that you include that in your

23     reconsideration of the scheduling?

24             MR. GROOME:  Yes, Your Honour.  But if I could just say one

25     thing.  With respect, it's very -- with this issue, it's very helpful to

Page 8986

 1     have the estimates.  Of course, it's only -- it's more helpful if we have

 2     some indication from the Chamber that it is going to adopt the time

 3     requested or is it going to make its own decision.

 4             JUDGE ORIE:  That's the reason why I was asking for the -- and

 5     then you intervened and you said you received information from

 6     Mr. Jordash.  But what that information, apart from Mr. Kirudja, is is

 7     still unknown to the Chamber.  Therefore, if you want the Chamber to look

 8     at it, then we need to receive that information.

 9             MR. GROOME:  Yes, Your Honour.  And could I ask that for next

10     week - and it seems that we'll have that information by the end of the

11     week for the rest of the case, the rest of the Prosecution case - could I

12     ask that we -- counsel inform the Chamber with respect to next week and

13     it would greatly assist the Prosecution in revising next week to know

14     approximately what times will be granted.

15             JUDGE ORIE:  Yes.  And perhaps we should not wait until Friday

16     with that.  Mr. Petrovic, I'm talking about next week witnesses only.

17     You've informed us about Mr. Kirudja.  Then for witnesses JF-030 and

18     JF-053, the Chamber would like to receive your assessment by tomorrow.

19             MR. PETROVIC: [Interpretation] I would appreciate it if we may do

20     it tomorrow, if that's not too late for planning purposes.

21             MR. GROOME:  That should be fine, Your Honour.

22             JUDGE ORIE:  Yes, I said we'd like to receive it by tomorrow, so

23     that's -- unless you have another tomorrow on your mind.

24             MR. PETROVIC: [Interpretation] No, of course not.  I wasn't

25     following the transcript, and I just saw what you said.  Of course.

Page 8987

 1             JUDGE ORIE:  Thank you.

 2             MR. GROOME:  Your Honour, while we're on this issue, I could just

 3     finally just recognise from the Prosecution's point of view that the

 4     extra efforts that the Chamber has made to schedule additional hearings

 5     and to facilitate witnesses that have been scheduled to remain on

 6     schedule is not only greatly appreciated by the Prosecution but by the

 7     witnesses as well.  And I also thank not only the Defence but the accused

 8     themselves for being flexible in the scheduling of hearings for the case.

 9             JUDGE ORIE:  Yes, that's on the record.

10             I would like now to address the week of the 22nd of November.

11     The Chamber has been copied, Chamber staff has been copied, on an e-mail

12     exchanges on the scheduling of the witness of the 22nd of November, and

13     one of the things we find -- found in this e-mail exchange is that the

14     parties wanted to discuss the matters, and the Chamber wonders whether

15     you'll find a solution to these scheduling difficulties in the week

16     commencing the 22nd of November.

17             MR. PETROVIC: [Interpretation] Your Honour, we did not discuss

18     that.  We are going to discuss it during the first break - Mr. Groome and

19     our Defence team, that is - so we will be in a position to inform you

20     after the break.

21             JUDGE ORIE:  Thank you for that information.  Then the last

22     scheduling item would be the week commencing the 6th of December where

23     the expert testimony of Christian Nielsen has been scheduled.

24     Mr. Groome, you've indicated that you sought to schedule this witness for

25     five days which during that week, if I'm not mistaken, I earlier made

Page 8988

 1     reference to the medical reports.  We have speeded up the trial by going

 2     from two days to three and then to four days, and it -- the Chamber has

 3     great hesitations to already in advance schedule a week for five days,

 4     also in view of the medical reports relating to Mr. Stanisic.

 5             But before we decide on that matter, is there any estimate yet?

 6     I take it then, Mr. Jordash, from your part there is.  How much time you

 7     would need in cross-examination of Mr. Nielsen?

 8             MR. JORDASH:  We've indicated, I think, 8 to 10 hours, a similar

 9     amount as we took with Mr. Theunens.  And may I also say this at this

10     stage, that we find ourselves in slightly awkward circumstances in that

11     Mr. Stanisic is determined to push on and in my view, based on the

12     medical evidence and based on my own observations, sometimes to his own

13     medical detriment.  And so I put it in that way.  I hope Your Honours

14     understand the dilemma that we as his representatives find ourselves once

15     we push to four days a week and certainly to five.  We have an accused

16     who wants to be cooperative and wants to be seen to be cooperative, but

17     on the other hand we as Defence counsel have a job to do which is not

18     always consistent with that determination.

19             JUDGE ORIE:  Yes.  We have the medical report, which, until now,

20     say, well, four days a week slowly move to that.  But that's -- at this

21     moment, that's the assessment of the medical specialist.  If Mr. Stanisic

22     would want to go to five days a week, then I can't say in advance that

23     the Chamber would agree with that.  Certainly not, because we are guided

24     by the position taken by Mr. Stanisic, we are guided by the medical

25     reports we receive, we are guided by our -- of course our personal

Page 8989

 1     impression on these days.  I'm not saying that you say that he wants to

 2     go to five days a week, but I just explain our hesitation to go beyond

 3     anything which we find at this moment as an appropriate scheduling in the

 4     medical reports.

 5             MR. JORDASH:  Well, Your Honour, I certainly didn't wish to give

 6     the impression that we as the Defence accept that the four days a week

 7     indicated by the doctors is a realistic assessment in all instances.  We

 8     filed our submissions on this point and Your Honours will be aware of

 9     those submissions and we do not move from those submissions which

10     effectively in a nutshell were that the doctor's assessments was not

11     based on the out-of-court work that we, the Defence, have to do with

12     Mr. Stanisic and that he himself has to do to be fully up to speed on the

13     court process and what's happening in the court.

14             But what I was trying to say is that when we -- when we move to

15     four days, Mr. Stanisic's instinct is always to say yes.  And if we were

16     to move to five, his instinct is always to say yes.  And the point I was

17     trying to make was that that instinct and that determination to be

18     co-operative is not always consistent with my own observations or

19     certainly not medical evidence.

20             JUDGE ORIE:  Yes, I do understand.  You are telling us more or

21     less that your personal assessment and appreciation of the condition does

22     not always coincide with what Mr. Stanisic presents to us as what he

23     would prefer to do if we improved -- if we scheduled beyond what we did

24     in the past.

25             MR. JORDASH:  Yes, I think the subjects we're dealing with are

Page 8990

 1     complex, and the concentration required is significant.

 2             JUDGE ORIE:  Yes.

 3             MR. JORDASH:  And it's exhausting for all, especially those who

 4     are not of ordinary, normal health.

 5             JUDGE ORIE:  Yes.  I think it's good that we have again got this

 6     clear explanation of your position, Mr. Jordash.

 7             Mr. Bakrac, cross-examination for Mr. Nielsen.

 8             MR. BAKRAC: [Interpretation] Yes, yes, your first question had to

 9     do with Mr. Nielsen, so the position of our Defence is that we are going

10     to need as much time that we had used for expert witness Theunens, that

11     is to say, about ten hours, as far as I can remember.  That is the amount

12     of time that we used for Theunens.

13             Another thing that I would like to mention, and I see that we are

14     getting close to the time for the break.  I hope that you will give me

15     two or three minutes though.  I would just like to remind the

16     Trial Chamber of our motion when the modality of the trial was being

17     changed, when we presented the problems that we were facing.  Of course

18     they are not of a health nature, they have nothing to do with our

19     client's health, but they are of a different nature, and you are aware of

20     that.  And there is, therefore, no need for me to repeat that.

21             We have made every effort and shall continue to do so to be

22     co-operative, to not create problems for the Trial Chamber, for this

23     trial to proceed as efficiently as possible without jeopardising the

24     interest of our client and his right to a fair trial.

25             In view of all the circumstances that you are aware of, we would

Page 8991

 1     not like to be brought into a situation akin to the one that happened

 2     last week.  With the best of intentions of accommodating the schedule

 3     that the Prosecution, and may I say this once again, unintentionally, I'm

 4     sure, made in an unrealistic fashion, due to the seriousness and the

 5     volume of material involved with the testimony of Mr. Theunens, we simply

 6     didn't have time to prepare for the next witness.  We have already said

 7     that a three-day working week does leave us some scope for catching up

 8     with the proceedings, but increasing the number of working days in court

 9     would reduce our possibility of dealing with our own client and looking

10     through the material that we did not have time to look at since October,

11     that is, when we got involved.

12             With three days, we could catch up, and that would be the case

13     until winter recess starts, and then we will not be in a position not to

14     have a enough time to deal with a particular witness.  After that, if the

15     Prosecutor wants to bring some more witnesses, we would be prepared for

16     them as well.  What I'm trying to say is that I'm afraid that increasing

17     the number of working days could bring us to a situation to appear before

18     this Trial Chamber and say, yet again, that we were physically incapable

19     of preparing for a witness.  Our Defence team really doesn't want to be

20     in that position.  We are trying to be co-operative to a maximum and to

21     help these proceedings evolve as speedily as possible without

22     jeopardising the right of our client to a fair trial.

23             Thank you, Your Honours.

24             JUDGE ORIE:  Thank you Mr. Bakrac.

25             Mr. Groome, whatever the situation is, sitting three days a week

Page 8992

 1     or four days a week, it seems that if the Chamber would follow the

 2     assessment of the Defence in relation to Mr. Nielsen, and I'm therefore

 3     returning to the week of the 6th of December, that it would be

 4     unrealistic to expect that the testimony of Mr. Nielsen would be

 5     concluded in one week.

 6             MR. GROOME:  I recognise that, Your Honour, and I will make

 7     contact with Mr. Nielsen and get information about his availability both

 8     the remainder of December and in January and provide that in the future

 9     weekly notification so the Chamber will hopefully have more -- enough

10     information to make decisions about when he would like to schedule his

11     testimony.

12             JUDGE ORIE:  Thank you for that.  This, in order not to be

13     misunderstood, is not a final ruling on granting the time the Defence

14     claims for the cross-examination -- it claims they need for the

15     cross-examination of Mr. Nielsen, let me be clear.

16             We will have a break.  Could I also hear from the Defence how

17     much time they would need for the cross-examination of the next -- no,

18     no, let me first ...

19             Talking about the next witness, Mr. Bakrac, a minute ago you

20     referred to the testimony of Mr. Theunens and you also refer to not

21     having had sufficient time to prepare for the next witness.  I understood

22     that to be that you didn't -- that you referred to a situation in the

23     past where you had not sufficient time to prepare for the witness who was

24     called as the first after Mr. Theunens had testified, and not for the

25     next witness, that is, the witness who will start his testimony.

Page 8993

 1             MR. BAKRAC: [Interpretation] Yes, Your Honour.  I was not very

 2     specific, but I fully understand that you want to have a clear situation

 3     in the transcript.  Precisely.  I was talking about the witness who

 4     followed Witness Theunens.  I was not talking about the next Prosecution

 5     witness.

 6             JUDGE ORIE:  That is understood.  Could I hear from the Defence

 7     how much time they would need for the cross-examination of Witness JF-004

 8     who will testify in closed session?

 9             MR. JORDASH:  It depends.  It would be between 30 minutes and one

10     hour, depending upon a legal argument which we need to make concerning

11     additional evidence served yesterday.  If Your Honours rule that evidence

12     inadmissible, it will be approximately 30 minutes.

13             JUDGE ORIE:  Yes, and this is an invitation already, isn't it?

14             MR. JORDASH:  Accidently made.

15             JUDGE ORIE:  Mr. Bakrac.

16             MR. BAKRAC: [Interpretation] Your Honour, I am prepared for the

17     next witness, but if Mr. Jordash covers what I think he will cover, our

18     Defence most probably will not have any questions for JF-004.

19             JUDGE ORIE:  Mr. Groome, this even perhaps opens an opportunity

20     that we would conclude that testimony today, because you need how much?

21             MR. GROOME:  Estimated about an hour and a half for this witness,

22     Your Honour.

23             JUDGE ORIE:  Hour and a half, yes.  Well, and hour and a half

24     plus one hour is two hours and a half, is two times 75 minutes.  But even

25     if we would conclude with the testimony of the next witness today, the

Page 8994

 1     Chamber nevertheless would like to briefly deal with a few procedural

 2     matters which have been pending and have been delayed for quite a while.

 3     So, therefore, even if you would hurry to conclude the testimony today,

 4     don't be yet convinced that there would be not even a short session

 5     tomorrow.

 6             MR. GROOME:  I think there also may be legal submissions with

 7     respect to some of the evidence, judging from our discussions with

 8     Mr. Jordash earlier today.

 9             JUDGE ORIE:  I think matters are clear at this moment that we

10     might easily conclude the testimony of the next witness this week, and

11     most likely we need part of tomorrow's session for dealing with all the

12     matters on our desk at this moment.

13             MR. JORDASH:  And in those circumstances, Mr. Stanisic would

14     request to be excused tomorrow.  He's in the middle of some serious

15     medical examinations.  The first part took -- occurred this morning, and

16     the second part would be tomorrow.  So his request would be to be excused

17     from court.

18             JUDGE ORIE:  Yes.  Just to be very clear, the medical situation

19     of Mr. Stanisic is not such that he says, Please have no hearing

20     tomorrow --

21             MR. JORDASH:  No, he's -- it's really --

22             JUDGE ORIE:  He will then waive his right to be present in court

23     tomorrow?

24             MR. JORDASH:  Yes.  Yes, he would waive his right.  I think he's

25     fairly exhausted by the examinations, but he's content with the court

Page 8995

 1     proceeding, whether we finish with the witness or not.

 2             JUDGE ORIE:  Because it may be clear that we would seriously

 3     consider any application under the present circumstances to adjourn until

 4     these reasons do not exist anymore for not attending.

 5             MR. JORDASH:  Mr. Stanisic requested that I make the application

 6     for him not to be present and indicated immediately he wanted the court

 7     proceedings to continue.

 8             JUDGE ORIE:  That's clear on the record.  If there's nothing

 9     else, we'll have a break.  And we resume at 4.00, and we'll then

10     immediately turn into closed session.

11                           --- Recess taken at 3.32 p.m.

12                           --- On resuming at 4.03 p.m.

13             JUDGE ORIE:  We move into closed session in order to hear the

14     evidence of the next witness.

15                           [Closed session]

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Page 9053

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22                           [Open session]

23             THE REGISTRAR:  We are in open session, Your Honours.

24             JUDGE ORIE:  Thank you, Madam Registrar.  We adjourn for the day,

25     and we'll resume tomorrow, the --

Page 9054

 1             MR. JORDASH:  Sorry, Your Honour.

 2             JUDGE ORIE:  Yes, Mr. Jordash.

 3             MR. JORDASH:  Can I just check that -- I cannot remember whether

 4     Your Honours agreed that Mr. Stanisic could be absent tomorrow, so I just

 5     wanted to check.

 6             JUDGE ORIE:  Yes.  I don't know whether I expressly said so, but

 7     that the Chamber agrees that Mr. Stanisic can be absent tomorrow.

 8             MR. JORDASH:  Thank you.

 9             JUDGE ORIE:  I take it that the request is still there, although

10     we have moved a bit slower with the evidence of the present witness.

11             MR. JORDASH:  The position remains the same.  Thank you.

12             JUDGE ORIE:  Yes.  Then --

13                           [Trial Chamber and Registrar confer]

14             JUDGE ORIE:  May I take it, where the spreadsheet was admitted

15     confidentially, that the -- none of the transcripts of the video -- of

16     the intercepted telephone conversations, that there's no need to keep

17     them confidential?

18             MR. GROOME:  That's correct, Your Honour; they can all be public.

19             JUDGE ORIE:  Yes.  All public.

20             We adjourn for the day.  And we'll resume tomorrow, the

21     11th of November, at quarter past 2.00 in the afternoon in this same

22     Courtroom II.

23                           --- Whereupon the hearing adjourned at 7.01 p.m.,

24                           to be reconvened on Thursday, the 11th day of

25                           November, 2010, at 2.15 p.m.