1 Thursday, 27 January 2011
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.19 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. 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 Before we go into closed session, there's one item I'd like to
13 briefly address. It is the Chamber's expectation that we would finish
14 the next witness today. We have prepared a meeting for tomorrow morning.
15 Now, if it would accommodate, especially Mr. Stanisic, to start a tiny
16 little bit later - I don't know how his programme looks like in the
17 morning hours - then we would consider that, but one thing is for
18 certain, we should finish tomorrow morning in this hearing not later
19 than, well, let's say 11.30, perhaps 11.45, because it's a hearing which
20 has been scheduled at a relatively late stage and other commitments are
21 there. But I do not know to what extent it at all helps to have a little
22 bit of a later start and whether the Chamber will have a commitment on
23 not finishing any later than 11.30.
24 MR. JORDASH: There is an expectation -- I've been discussing
25 matters with Mr. Bakrac, and we have an expectation that we are going to
1 finish this witness well within time.
2 JUDGE ORIE: Yes.
3 MR. JORDASH: Mr. Bakrac thinks he might be about an hour and
4 I'll be less than half an hour, so I don't know if that --
5 JUDGE ORIE: That even opens a totally different possibility,
6 that is, that we would hear your submissions this afternoon.
7 Now, I don't know how the communications with OLAD are at this
8 moment, because you asked us yesterday to, well, not to put pressure, but
9 at least to encourage OLAD to come with positions before tomorrow, before
10 you would make any submissions.
11 MR. JORDASH: Yes.
12 JUDGE ORIE: Which would mean that under the present
13 circumstances, if we have finished the witness, then I think in the break
14 we have after that, I would then encourage you to see where OLAD is at
15 this time so that you would know what exactly the problems are you are
16 facing or you are still facing.
17 MR. JORDASH: Yes.
18 JUDGE ORIE: So then I suggest that we proceed as follows: We
19 first hear the testimony; then you have an opportunity, perhaps, to
20 verify with OLAD whether any problems have been resolved meanwhile or not
21 and what you want to submit; and then we'll hear that in half an hour
22 after that.
23 There was one other matter, that was the new questions to be put
24 to Mr. Theunens. I don't know whether you have already discussed this
25 matter with the Prosecution.
1 MR. JORDASH: I haven't discussed it with the Prosecution, but I
2 have sent Mr. Weber what we suggest are outstanding issues for him to
3 consider and to let us know what --
4 JUDGE ORIE: Okay. We'll then further hear from you and/or
5 Mr. Weber, because scheduling a hearing for tomorrow just for five
6 minutes wouldn't make much sense.
7 MR. JORDASH: No.
8 JUDGE ORIE: Then, Madam Registrar, it -- where we made all
9 preparations to have a hearing tomorrow morning, it seems to be uncertain
10 whether we need that hearing.
11 Then unless there's any other matter, I would like to turn into
12 closed session.
13 [Closed session] [Confidentiality partially lifted by order of the Chamber]
11 Pages 10757-10758 redacted. Closed session.
11 THE WITNESS: [Interpretation] I solemnly declare that I will
12 speak the truth, the whole truth, and nothing but the truth.
13 WITNESS: JF-053 [Resumed]
14 [Witness answered through interpreter]
15 JUDGE ORIE: Thank you, Witness JF-053. You'll now first be
16 examined by Mr. Groome who, as you know, is counsel for the Prosecution:
17 Mr. Groome.
18 MR. GROOME: Thank you, Your Honour.
19 Examination by Mr. Groome: [Continued]
20 Q. Good afternoon, JF-053.
21 MR. GROOME: Your Honours, on the 17th of November, 2010, the
22 Trial Chamber admitted a pseudonym sheet for this witness as P1613 under
23 seal. Could I ask that we begin by bringing up to our screens
24 65 ter 6134. It's a record of interview dated the
25 15th of February, 2008.
1 Q. JF-053, while that is being brought to our screens, do you recall
2 giving a statement to an investigator by the name of Kaiser Rizvi on the
3 11th to the 13th of July and the 15th to the 18th of December in the year
5 A. Yes, I do.
6 Q. Do you recall meeting with a Prosecutor from the Office of the
7 Prosecutor by the name of Klaus Hoffmann in November of 2007 and
8 providing him detailed information you have related to this case?
9 A. Yes, I do.
10 Q. In preparation for your appearance here today, did I ask you to
11 review both of these documents with a view towards correcting any
13 A. Yes.
14 Q. After having reviewed both of these documents, did you form a
15 view as to which one of them most reliably reflected your evidence?
16 A. Since I'm seeing both of my statements for the first time since I
17 gave them, this second statement is authentic except for a few minor
18 changes. As for the first one, I really absolutely couldn't -- not
19 absolutely, but I wouldn't really want to rely on it because there are
20 quite a few things there that I didn't say.
21 Q. Now, the statement that you are saying is more reliable, is that
22 the one given to Mr. Hoffmann?
23 A. Yes.
24 Q. Would you you please look at the screen before you. It is an
25 information report authored by Mr. Hoffmann and dated the
1 15th of February, 2008. Is this the record of your interview with
2 Mr. Hoffmann in 2007, and recorded by him, which you reviewed in advance
3 of your appearance here?
4 A. Yes. And I have very slight changes as far as that is concerned.
5 Q. Did you inform me earlier today of the paragraph numbers of those
6 paragraphs which you wish to make corrections to?
7 A. Yes. And I would like to ask if I could use the paper that I
8 have with me as a kind of note.
9 Q. Well, let me ask you a question first. Did you record on some
10 hotel stationary the corrections you wished to make?
11 A. Yes.
12 Q. Do you believe that would assist you this afternoon in making
13 these corrections?
14 A. Yes, and that is why I would like to ask to use it, if possible,
16 MR. GROOME: Your Honour, I'd ask permission for the witness to
17 take out the piece of paper that he wrote the corrections on.
18 MR. JORDASH: This is the item we've had disclosed, I presume?
19 MR. GROOME: No, it's not. The item that was disclosed were the
20 corrections to the earlier statement. I don't have a copy of whatever he
21 has in his pocket.
22 MR. JORDASH: Okay. No objections.
23 JUDGE ORIE: No objections.
24 Mr. Bakrac, no objections either.
25 You can use the -- your notes in which you jotted down your --
1 the matters you would like to change, so feel free to do so.
2 MR. GROOME:
3 Q. The most orderly way that we can proceed is for me to draw your
4 attention to each individual paragraph you indicated you wished to change
5 and ask the usher to display that paragraph on the screen before you.
6 When we all can see the paragraph, would you tell us what amendments you
7 wish to make. Once we have finished with a paragraph, I will advance
8 until we come to the end of the document.
9 Is that understood?
10 A. Yes.
11 Page 10763 redacted. Closed session.
21 MR. GROOME:
22 Q. Apart from the corrections that you have now told us about, are
23 there any other corrections you wish to make before you affirm the
24 truthfulness and accuracy of this record of interview?
25 A. I don't have anything else to add here. It's just as I talked
1 with Mr. Hoffmann and that is there complete.
2 Q. If I were to ask you the same questions here today that
3 Mr. Hoffmann asked you on November 15th, 2007, would you provide the same
4 answers in substance?
5 A. Yes.
6 Q. Now that you have taken the solemn declaration, do you affirm the
7 truthfulness and accuracy of this written record of your evidence?
8 A. That is what I said, yes.
9 MR. GROOME: Your Honours, at this time the Prosecution tenders,
10 pursuant to 92 ter, 65 ters -- 65 ter number 6134 into evidence under
12 JUDGE ORIE: I hear of no objections.
13 I suggest the following: That the document will be MFI'd; that
14 you upload, Mr. Groome, a version without paragraph 8 and without
15 paragraph 20, blackened out; and that what then remains is admitted into
16 evidence. And we'd like to be informed as soon as you have uploaded the
17 redacted version, preferably before the witness leaves, so that we know
18 whether it's a final decision, the admission of this evidence.
19 Please proceed.
20 MR. GROOME: I would ask now that a courtesy sheet that I gave
21 to --
22 JUDGE ORIE: I've forgotten to ask Madam Registrar to assign a
23 number, an MFI number, already to this.
24 THE REGISTRAR: 65 ter 6134 becomes P2108 MFI'd under seal,
25 Your Honours.
1 JUDGE ORIE: Thank you, Madam Registrar.
2 MR. GROOME: I'd ask that the Registrar now hand out -- there's a
3 courtesy sheet that I provided to Defence counsel, and I have some for
4 the Chamber.
5 Your Honours, in the Hoffmann statement there are 14 items of
6 evidence which are referred to and thereby associated to it. Nine of
7 these are already exhibits in this case. Of the remaining five, one is
8 not an exhibit on the Prosecution exhibit list; one is irrelevant to this
9 case; and for the remaining, that JF-053 had limited or no information
10 related to their authenticity or substance. The Prosecution has created
11 a courtesy sheet that enumerates them all and may assist the Chamber in
12 identifying with certainty the exhibits JF-053 comments on in P2108
13 marked for identification. This sheet is identified as 65 ter 6139, and
14 I would ask that it be marked for identification.
15 JUDGE ORIE: Madam Registrar, the number of this sheet
16 would be ...
17 THE REGISTRAR: 65 ter 6139 becomes P2109, Your Honours.
18 JUDGE ORIE: And is marked for identification.
19 MR. GROOME: Your Honour, I have no --
20 JUDGE ORIE: Under seal.
21 MR. GROOME: Your Honour, I have no further questions of this
23 JUDGE ORIE: Yes, I'm just going through that list. What you
24 actually say, there's one item remaining, isn't it? We have 14 items,
25 nine already exhibits, five remaining, one is not on the exhibit list, so
1 you don't want to rely on that, one is irrelevant --
2 MR. GROOME: Number 13, Your Honour, is a employment record of
3 the witness that is in 1999, I believe. It's after the indictment
5 JUDGE ORIE: That's irrelevant. That's number 13. And then I'm
6 just trying to follow you in full.
7 MR. GROOME: Then, Your Honour, numbers 2, 6, and 8, it's the
8 Prosecution's view that the witness has insufficient information about
9 these documents to assist the Chamber.
10 JUDGE ORIE: Yes. And then the one remaining is ...
11 MR. GROOME: I believe that's all now, Your Honour.
12 JUDGE ORIE: I have now nine plus four. And the last one, the
13 fifth, was then 6139.
14 MR. GROOME: If it assists, I can go through them: 1 is the
15 exhibit that's not on the list. Numbers 2, 6 and -- 2, 6, and 8 are the
16 ones the witness has limited information. And the fifth one, number 13,
17 is the one that's irrelevant.
18 JUDGE ORIE: Now again, 2, 6, 8, 13 are out for the reasons you
19 gave, and then I'm just --
20 MR. GROOME: Number 1 on the list is the other one. They have
21 strike-through font.
22 JUDGE ORIE: Yes. And then 9 remain. It's clear to me.
23 MR. GROOME: And, Your Honour, just so it is also clear to the
24 Chamber, the number in the second column is the paragraph in the exhibit
25 now which comments on the particular exhibit.
1 JUDGE ORIE: Yes. Thank you for that. It's now perfectly clear
2 to me.
3 Witness JF-053, you'll now be cross-examined.
4 Who goes first? Will it be you, Mr. Bakrac?
5 You'll now be cross-examined by Mr. Bakrac. Mr. Bakrac is
6 counsel for Mr. Simatovic. You'll find him to your left.
11 Pages 10769-10777 redacted. Closed session.
5 Q. Thank you, Witness, I'm now done with your corrections. And I
6 just have a few questions for you. We will proceed in order.
7 First tell me: Jovica Milacic, you mentioned him in the
8 corrections, who is that?
9 A. Jovica Milacic was the commander of the Kosovo Battalion of the
10 PJP units of the police that were formed then. He was the superior
11 officer at the SUP Pristina staff command, actually deputy commander.
12 Q. He is from Kosovo, isn't he?
13 A. Yes, he's from Pec.
14 Q. I'm going to try to go more slowly, but I'm just kindly asking
15 you to pause between question and answer so the interpreters can
16 interpret what you're saying.
17 So can you tell us whether he was a member of the public security
18 department of the MUP?
19 A. Yes.
11 Pages 10779-10811 redacted. Closed session.
23 MR. GROOME: Yes, Your Honour. Just a couple of questions.
24 Re-examination by Mr. Groome:
25 Q. JF-053, you were asked, today, about Beli Manastir. For those of
1 us who are not completely conversant in the geography of the region, in
2 what country is Beli Manastir?
3 A. It is in Croatia now. At that time it was also in the
4 Republic of Croatia, but at the time there was Slavonia, Baranja, and
5 Western Srem, the Republic of the Serb Krajina. I mean, it was outside
6 the territory of Yugoslavia, if that is what you wanted to ask me.
7 Q. Can you give us some idea about how far it would be in kilometres
8 to the present border between Serbia and Croatia?
9 A. Well, it's not very close. I haven't been there in
10 16 or 17 years, but, yes, it could be around 100 kilometres. I don't
11 know exactly.
11 Pages 10814-10816 redacted. Closed session.
11 [Open session]
12 THE REGISTRAR: We are in open session, Your Honours.
13 JUDGE ORIE: Thank you, Madam Registrar.
14 There are no further witnesses. Mr. Jordash would like to make
15 submissions. For the submissions to be as meaningful as possible, you
16 would need a little bit more time, Mr. Jordash, is that well understood?
17 MR. JORDASH: Well, I have to see OLAD first to, I think,
18 informally have their response --
19 JUDGE ORIE: Yes.
20 MR. JORDASH: -- and then if I could be given a little time to
21 absorb that, please.
22 JUDGE ORIE: Yes. Now, what would be a safe time to resume?
23 Would that be -- a quarter past 6.00, would that do? I mean, the problem
24 is that if you say, No, make it 6.31, then I know who finally will be the
25 victims --
1 MR. JORDASH: I think quarter past --
2 JUDGE ORIE: -- interpreters, security, transcribers, and I have
3 victimised them sufficiently already in their lives.
4 MR. JORDASH: Quarter past 6.00 is absolutely fine, thank you.
5 JUDGE ORIE: Quarter past 6.00. And if any time remains, I'll
6 read one more decision. We'll hear, at a quarter past 6.00, further
7 submissions on the matters Mr. Jordash raised recently, and we'll then
8 finish not one second later than 7.00. We take a break.
9 --- Recess taken at 5.23 p.m.
10 --- On resuming at 6.17 p.m.
11 JUDGE ORIE: Mr. Jordash, you asked to be allowed to make
12 submissions in relation to the remuneration of Defence counsel. I
13 earlier asked whether there would be anything wrong if we would already
14 inquire a bit into what the problem was. Of course, the case file shows
15 already what happened in the past. We have mainly sought to acquaint
16 ourself with the problems by reading the application the Defence has made
17 to the president of the Tribunal, in which it asks for at least a
18 decision on a request to review the earlier decision taken by the
19 Registry, which mainly deals with -- I would say personal circumstances,
20 that is, the basis, the assessment, of -- of the personal assets.
21 We have also read the Registrar's response to that. And,
22 finally, you were so kind to provide us with a request dated the
23 19th of November, 2010, which deals with rather different matters, that's
24 how to calculate, how to assess what is fair, as far as remuneration is
25 concerned under the system, dealing with various matters.
1 We have read all that. So to that extent we are familiar with
2 the problems. You are now invited to make submissions. I do not know
3 whether your meeting with OLAD has created any further -- whether it has
4 resolved in any way partly or as a whole or not at all the problems on
5 the two levels you are facing.
6 MR. JORDASH: The simple answer to that is that, no, it hasn't.
7 OLAD's position is that it has no discretion either to alter the monthly
8 payment nor to disburse any further funds which would deal with the
9 serious problem.
10 JUDGE ORIE: And you would still need the whole of the
11 30 minutes, you would say?
12 MR. JORDASH: Yes.
13 JUDGE ORIE: Matters being unchanged.
14 MR. JORDASH: Well, Your Honour, in many ways I could speak for
15 much longer, but obviously I won't. And I'm very happy to put some of
16 these details, which are complex, onto paper. But given the urgency, I
17 wanted to outline as succinctly as possible what the real problem is.
18 And I'll say from the outset it's always uncomfortable to have to
19 stand up and talk about what can be easily in some minds painted as
20 Defence counsel complaining about fees. It's not that. On the contrary.
21 I think all counsel in this case are funded at a level which is far less
22 than counsel in other cases of a comparable nature and in large part have
23 done so without complaint. But we do complain now because the situation
24 is such that what we would be asked to do, what I would be asked to do,
25 what our team would be asked to do in order to be able to prepare this
1 case properly, would make the remuneration to us at a level which is
2 unacceptable and which would make the possibility of attracting a
3 qualified co-counsel as practically impossible.
4 And OLAD's position, that it has no discretion, may or may not be
5 right. I'll address that shortly and argue that it's not right. But
6 whether it has discretion or not, whether the scheme which remunerates
7 cases is untouchable, in our submission, that's not the point. The point
8 is that pursuant to Rules 20 and 21 of the Statute, the Trial Chamber has
9 the power -- sorry, not the power, but the inherent duty to ensure a fair
10 trial and a proper administration of justice. And in circumstances, we
11 submit, where it's plainly the case that the funds do not allow a
12 properly constituted team, in our submission, the Trial Chamber ought to
13 intervene. And whether that's by building in discretion to the scheme
14 that OLAD says doesn't have that discretion, or simply overriding that
15 scheme, in our submission, then that shall have to be done.
16 And in a nutshell, the problem is this: The calculation that
17 OLAD make provides us with money which will fund support staff only, and
18 OLAD calculate that support staff for a Level 3 case ought to receive in
19 the region of 15,000 euros per month. Our support staff bill is
20 comparable to other cases of a similar size and complexity, leaving money
21 to pay for one counsel. That money is expected to come from the accused,
22 who, as Your Honours are aware, has been ordered to fund part of his
23 Defence case.
24 So during the Prosecution case, we have effectively been funded
25 at a level which allows support staff to be employed and one counsel, and
1 we've dealt with that situation by simply one counsel doing a large part
2 of two counsel's work and legal assistants picking up the rest. The
3 Defence case now is before us, and OLAD have not and say they will not
4 indicate as yet what their funding of the Defence case will be. But we
5 can say at this stage that the client, the accused, has agreed and can
6 only pay 7.000 euros a month, which, if OLAD do not increase the budget
7 for the trial in the Defence phase, we find ourselves in exactly the same
8 situation. The difference is that myself and Mr. Knoops took the view
9 that with his part-time work and the rest of the team working
10 unreasonable hours, we could cope with the Prosecution case. I have
11 absolutely no such hope that that could -- that situation will exist in
12 the Defence case. In our submission, it is impossible to present this
13 Defence case in this situation.
14 The problem appears to be based, first of all, on OLAD's
15 calculation, which is based on an assumption that ordinarily trials
16 proceed at five days per week. That's what we were told at the time we
17 applied for funding. That's the assumption that we had until it became
18 clear during the Prosecution case that, having spoken to other teams --
19 and I would say at this point, this policy of OLAD, and that assertion by
20 OLAD, is not in any way transparent. We, the Defence, could not have
21 looked at a document which confirmed that indeed trials do proceed at
22 that rate. We discovered that that assertion that trials proceed at five
23 days a week was wrong, having spoken to various other Defence teams.
24 Having taken that as a bench-mark, OLAD then looked at our
25 sitting of two days a week and the scheme it applies effectively then
1 produced a figure which pays our team at a part-time -- on a part-time
2 basis. Now, I won't go into the minutia of the way that the calculations
3 have been done; it's contained in the letter which we have given to my
4 learned friends from the Prosecution as well as Your Honours. But it, in
5 our submission, amounts to this: Being paid at a part-time rate, doing a
6 full-time job. There's no point in time during this trial, despite the
7 fact that we have been sitting two days a week for part of it, that we
8 have been working part time. On the contrary, our team has been working
9 for at least six days a week throughout the whole of the course of the
10 trial and sometimes even more.
11 And there is something, in our submission, which is, whatever the
12 technicalities, we would urge Your Honours to accept that as fact, and,
13 in our submission, that ought to raise serious queries and questions
14 about the rationality of the policy which OLAD used to calculate funding.
15 But when one gets into the technicalities, then one can easily see, in
16 our submission, why that calculation was always going to go awry. If one
17 bases the funding of a case simply and only on the number of days a week
18 it sits in court, it fails to take into account how much work is being
19 done out of court. In this case, and I think maybe this is one of the
20 biggest factors, we've had practically every witness through 92 ter,
21 probably halving, maybe even taking two-thirds less time in court because
22 we haven't heard witnesses viva voce when giving direct evidence. So we
23 can reduce the amount of court time simply by having all witnesses heard
24 pursuant to 92 ter, and correspondingly on the OLAD scheme the funding
25 for the Defence is reduced. And yet, of course, it doesn't make one iota
1 of difference to the Defence work that the Rule 92 ter procedure reduces
2 the amount of hours spent in a courtroom.
3 We still have to pour over hundreds and thousands of pages of
4 Prosecution evidence which is admitted through the 92 ter procedure, just
5 that our work now is focused more on what we do outside of court as much
6 as it is on what happens in the court.
7 I said I wouldn't go into the technicalities, but it is, as set
8 out in our letter, a scheme which, we submit, if it is the correct
9 scheme, exceptions ought to be made in this case for the reasons set out
10 in the letter. Firstly, that OLAD based the assessment on cases sitting
11 five days a week when they obviously, in our submission, do not. Two,
12 that the OLAD's calculation fails to take into account the peculiarities
13 of this case or the particular circumstances of this case. And, thirdly,
14 well, I was going to state as my third ground the increase in expected
15 duration of the Prosecution case, but I think that might be moot because
16 I think that there's an expectation --
17 JUDGE ORIE: The situation has changed slightly since you drafted
18 this letter, yes.
19 MR. JORDASH: So the third ground, then, is the one I've just
20 outlined, which is the failure to consider the impact of Rule 92 ter on
21 method of calculating payment.
22 If I can just shortcut things. We reluctantly come to the
23 Trial Chamber in a situation which is not of our making. There is simply
24 nothing the present team could have done to change where we end up today.
25 Perhaps one answer will be, Well, you have a co-counsel on record,
1 Mr. Knoops, and he should come to court, come what may, whatever your
2 financial situations, a lawyer of his experience should be obliged to
3 come to court and work for what it would amount to derisory money.
4 Mr. Gosnell, a very talented lawyer who worked very hard for very little
5 money, we could expect him to come back and do the same. Or, in our
6 submission, what should happen is that we should -- the Court should
7 intervene and ensure that there are additional funds to hire a suitably
8 qualified co-counsel.
9 The alternative is that we ask Mr. Knoops to come back, as I've
10 indicated, and of course part of that is asking the present team to work
11 for what would again amount to be derisory remuneration. The better
12 approach, we would say, is to fund a Level 3 case at a level which allows
13 a proper team to be employed, with the expectation that we will work, if
14 necessary, night and day, as we do, to ensure that the accused obtains a
15 proper Defence. And we raise the point at this stage because that's what
16 a Defence case entails; it entails working night and day, far more, in my
17 experience, than what is required to meet a Prosecution case during the
18 Prosecution phase.
19 And there's a simple reason for that: Because the work involved
20 in interviewing witnesses and preparing them for court is
21 labour-intensive. There are no shortcuts. It requires two counsel to
22 sit down with witnesses and obtain the necessary evidence to ensure a
23 fair Defence. And anything less than two counsel doing that job will
24 undoubtedly, in our submission, lead us into -- in a position where we
25 have to apply for adjournments constantly simply to ensure that the
1 Defence case is prepared at a level which ensures Mr. Stanisic's fair
2 trial rights, a situation which, for many reasons, including
3 Mr. Stanisic's health, we would really like to avoid, as much as we would
4 like to avoid working in unreasonable circumstances with conditions which
5 are unreasonable when compared to other staff employed at this Tribunal.
6 Those are our submissions, unless I can assist any further.
7 JUDGE ORIE: Mr. Jordash, what do you exactly expect the Chamber
8 to do at this moment? What we know is that apparently under Article 13
9 of the assignment of Defence counsel - what is it, rules? - no, I
10 always -- it's the directive on the assignment of Defence counsel,
11 apparently under Article 13 you have raised one of the issues with the
12 president of this Tribunal. We've also seen that the Registrar has put
13 into question whether it is the president at this moment who is the
14 competent authority to deal with that matter, or we've also seen that the
15 Chamber can play a role in this respect as well.
16 Now, on what basis exactly would you expect what the Chamber
17 should do? Is this to be understood as a motion and then a motion based
18 on what exactly? I'm trying to find out exactly what is the legal,
19 procedural context in which we have heard what you told us and which is,
20 of course, a story which is in itself clear. So that's ...
21 MR. JORDASH: Yes. Let me put the matter as plainly as I can:
22 That we are, as a Defence team, unable to do the work that is necessary
23 to participate fully in this process. There are a number of motions
24 outstanding. There is massive evidence which hasn't been looked at by
25 the Defence team, including most of the Mladic diaries, including
1 hundreds and thousands -- thousands of pages of disclosure which has been
2 made over the last year also, including starting to focus on what shape
3 the Defence case will take. In an ideal world, what would be happening
4 now is that a co-counsel would be in Belgrade beginning to interview and
5 prepare witnesses. In an ideal world, a co-counsel would be, as
6 Mr. Gosnell was, considering these motions that are outstanding and --
7 JUDGE ORIE: Mr. Jordash, that's perfectly clear. But you are
8 not inviting the Chamber to dream about a perfect world, would you? So
9 therefore I'm again asking you: On what basis, in what exact procedural
10 context you're asking for what, or would you say I wanted to brief you
11 about a present situation and you can expect a written motion within ten
12 days, or ... I mean, I'm just trying to find out -- apart from trying to
13 understand what your problems are, I'm trying to find out in what
14 procedural context you are addressing us at this moment. The urgency of
15 the matter and how heavily it's felt to be weighing on the shoulders of
16 the Defence, that is perfectly clear.
17 MR. JORDASH: We are seeking the Trial Chamber's intervention in
18 a matter that is within the primary competence of the Registrar on the
19 basis that the matter now goes to the fairness of the trial and that
20 matter is the funding being offered by OLAD. And we're asking the
21 Trial Chamber to intervene --
22 JUDGE ORIE: In what way? Do you expect us to give orders? Do
23 you expect us to become mediators? Do you expect us to ... or are there
24 any other specific motions you have in your mind on fair trial issues
25 where you say, Okay, we'll file that motion and then ask you to do this
1 and that with the background this problem? It's not -- still not
2 entirely clear to me. Intervene, what way?
3 MR. JORDASH: Order the -- ultimately order OLAD to fund, provide
4 funds for co-counsel, which are, in our submission, clearly laid out in
5 the Registry's funding documents what a co-counsel should receive. That
6 would deal with the fair trial issue which has arisen as a result of the
7 assessment of funding for this case.
8 OLAD's response to that is that is doesn't have discretion. I've
9 read the Defence counsel payment scheme --
10 JUDGE ORIE: Well, I take it that OLAD says this in response to
11 what you have written and that as far as I understood it, that I didn't
12 know what the -- what the gist of their answer would be but that they are
13 preparing to give you a written answer to the 19th of November letter, is
14 that -- so there we would read exactly why they consider they are not --
15 that they have no discretion to do what you ask them to do.
16 MR. JORDASH: Yes, they are going to write a letter which --
17 which outlines --
18 JUDGE ORIE: I take it will explain at least their position, also
19 in legal, procedural context, what their competences are and what they
20 can do, what they cannot do, what the president should do, what the
21 Trial Chamber should do, at least that's -- we need a clear picture of
23 MR. JORDASH: Yes. It -- I understand why Your Honours are
24 asking what we are asking of you. But to a degree, it's difficult to
25 be -- to settle on one. I settled on one, but the alternative is that I
1 ask the Trial Chamber to sit alternative weeks during the Defence case so
2 that I can, with the present team, manage without funding for a
3 co-counsel. That's an alternative. I mean, that's a situation which is
4 my -- obviously not my preferred submission.
5 JUDGE ORIE: And which would create, at the same time, because
6 then the number of sitting days would be reduced -- further reduced, one
7 day a week or two days a week, which would -- your problem is that that's
8 a wrong basis for it, so it would not really resolve your problem either.
9 MR. JORDASH: Well, it would resolve it in --
10 JUDGE ORIE: Unless --
11 MR. JORDASH: -- in one sense, in that I could then ensure a fair
12 trial for Mr. Stanisic. And we would all be impoverished in the Defence
13 team but at least we would achieve a fair trial from the funding
15 I do want to emphasise this, because I appreciate that there may
16 be fingers pointed at the accused, but I want to emphasise that during
17 the Prosecution case the amount that the client had to pay, when
18 calculated against the indigency order, would still have left us in this
19 position. If he'd paid his full amount, which he has by borrowing from
20 third parties, it still left us one co-counsel funding short. And that,
21 in our submission, shows the gravity of this situation. OLAD funding
22 plus what they expect from the client, and we are still one counsel
24 JUDGE ORIE: Could you please explain to me again -- what is
25 clearly on my mind, especially in relation to the application you made at
1 the president, is that a certain amount has been determined, you say it's
2 a wrong amount, but at least that's -- I haven't read anything about
3 what -- assuming, and that's for argument sake, take that as a starting
4 point, what, then, on a monthly basis, that is the -- what is -- we have
5 the assessment by the Registry, and he says, I'll pay so and so much less
6 because the accused is in a position that he can afford to pay, apart
7 from that there is a lot of discussion about that, and then that is also
8 divided over those month and that reduces the monthly, which means that
9 he is expected, the accused is expected, to pay the remainder. Now, a
10 very practical question, I'm not by asking for any details or where he
11 got the money from, whether he had it or whether he lent it: Has that
12 contribution as calculated by the Registry, you've obviously received
14 MR. JORDASH: Just about. I mean, with a little short but not
15 sufficient to make a bit --
16 JUDGE ORIE: Substantially yes, but not in full.
17 MR. JORDASH: Yes.
18 JUDGE ORIE: Okay. I also have another question for you. I
19 tried to fully understand -- and your complaints about sitting two, three
20 days, and the starting point five days a week sitting. Now, this is not
21 the beginning of an argument but just a matter of whether I understand
22 your position well. Is it true that the consequence of your position in
23 relation to that, where you emphasised that other cases are not sitting
24 five days a week either, that, as a matter of fact, not only the Stanisic
25 Defence, but all the Defences are suffering from this wrong starting
1 point to some extent, as a system?
2 MR. JORDASH: Well, it depends. I don't know what OLAD have said
3 to other teams. Now -- and that's part of the problem. There's no way
4 for us in the Defence to check, except for inquiring into personal --
5 into other teams' financial details. And I don't know if that's the
6 starting point in other teams' funding arrangements.
7 JUDGE ORIE: If that is the system, what you're saying is that
8 they use that as system, a normal case is five days a week, we are
9 supposed to sit, well, let's say, 2 days or 3 days, whatever, but they
10 have reduced remuneration on a monthly basis because we are not sitting
11 the five days a week. Now, you've also pointed at other cases which,
12 although expected to sit full time, are in effect sitting less. You are
13 referring to one case, 2.3 days on average. If they are calculated at
14 five days a week, again, if they are calculated in accordance with the
15 system that is expected to sit on five days a week, then they would have
16 to suffer also from this, I would say, system error.
17 MR. JORDASH: Yes. I -- yes.
18 JUDGE ORIE: It's just for me to -- whether I fully understand
19 your argument, that the argument is the whole of the system is wrong in
20 taking five days a week as realistic for a case which is full-time
22 MR. JORDASH: Yes. I think there's one case that sits five days
23 a week at the Tribunal, which is the Mico Stanisic and --
24 JUDGE ORIE: Zupljanin.
25 MR. JORDASH -- Zupljanin case, and the reaction in the Defence
1 room is one of horror amongst the Defence teams, that that schedule seems
2 to the rest of us almost impossible. And so I take from that -- and from
3 what I understand of their funding, they get the full amount, so I infer
4 from that that OLAD do take five days as the starting point.
5 JUDGE ORIE: Again, I'm not starting any argument with you, I'm
6 just trying to verify whether I understood especially this argument which
7 prominently appears in your 19th of November letter.
8 MR. JORDASH: Yes.
9 [Trial Chamber confers]
10 JUDGE ORIE: I checked with my colleagues. We at this moment
11 have no further questions, that is, I think we understood what you wanted
12 to bring to our attention. I'll come back to the Chamber intervening
13 soon, but I see that Mr. Petrovic is on his feet.
14 Would you like to add anything, Mr. Petrovic?
15 MR. PETROVIC: [Interpretation] Yes, with your leave, Your Honour,
16 very briefly.
17 First of all, I would like to say that our situation is basically
18 identical to the one described by Mr. Jordash. And we would like to
19 support everything that he said. That is the first point I wish to make.
20 Secondly, perhaps our attempt to make a suggestion. Since,
21 Mr. President, your question was how the Trial Chamber could intervene.
22 Can we give our interpretation, our understanding, of the directive on
23 appointing counsel and see how the Trial Chamber can influence that.
24 There are two problems, at least as far as we are concerned. So as
25 Mr. Jordash said, there is the calculation of the total sum, and it is
1 based inter alia on the fact that the first modality that prevailed in
2 this case all the way up to October in this case envisaged two days of
3 sitting per week. On the basis of Sate [phoen] decision in December last
4 year, a decision was made on financing our Defence, bearing in mind two
5 court days --
6 JUDGE ORIE: No, Mr. Petrovic, I'm going to stop you. Why?
7 Mr. Jordash has announced that he would like to make submissions on a
8 matter. The Chamber, therefore, was able to prepare for such
9 submissions. We even asked whether the Chamber was in a position to
10 inquire into what the situation was. We have read the various documents
11 submitted to the president. We were provided by Mr. Jordash with
12 detailed reasoning in his 19th of November letter. I do not mind if you
13 want to raise your matter as well but then prepared in a similar way as
14 Mr. Jordash has done, that is, explore all the formal matters or at least
15 put on paper in detail the problems you are having.
16 I, at least, after having been here for some ten hours, am just
17 not able to grab all this on the basis of an oral submission. So
18 therefore - and apart from that, time is running as well - I'm not
19 stopping you in raising the matter, in arguing the matter, I'm just
20 stopping you in the way you do it, that is, by oral argument at this
21 moment. Yes.
22 MR. PETROVIC: [Interpretation] Your Honour, just two sentences.
23 When taking a decision, OLAD takes into account the opinion of the
24 Trial Chamber. For example, if the Prosecution case took longer, OLAD
25 asks the Trial Chamber to explain why there was an extension. In this
1 situation, as far as I understood my colleague Mr. Jordash, OLAD planned
2 on having the Prosecution case finished by the end of December but it
3 will go well into February as well. So could the Trial Chamber please
4 explain that to OLAD, why the Prosecution case has gone on longer,
5 because it is not due to anything, we think, that we did or that the
6 Stanisic Defence did. So it's not right and it's not fair that basically
7 for these two months the two Defence teams will be acting without
8 receiving any remuneration.
9 Secondly, the Trial Chamber could explain to OLAD what an
10 increase from two to three days per week means in terms of our
11 obligations, the material that we have to deal with, everything that we
12 have to do. It seems to me that the Trial Chamber -- thank you.
13 JUDGE ORIE: I'm going to stop you there as well because there
14 were more than two sentences. But it's clear to me that you say that --
15 although this matter, I don't know to what extent it has been raised with
16 OLAD, we know for sure as far as the Stanisic Defence is concerned, that
17 you would say, if OLAD is seeking further information, give the proper
18 information and explain to them exactly what's happening in this
19 courtroom. That is understood, and you gave two examples.
20 Mr. Groome, is there anything the Prosecution would want to say
21 in this context?
22 MR. GROOME: Your Honour, the Office of the Prosecutor obviously
23 supports the fair trial rights of the accused. I think it would be
24 inappropriate for us to interject ourselves into the current discussion.
25 But, of course, if the Chamber has the view that the Prosecution has some
1 information that might assist the Chamber, we stand ready to provide it.
2 JUDGE ORIE: Thank you, Mr. Groome.
3 [Trial Chamber confers]
4 JUDGE ORIE: Mr. Jordash, as may be clear from what I said
5 earlier, it's not entirely clear yet what kind of intervention you are
6 expecting from the Chamber. If you have a certain intervention on your
7 mind, you should formalise that. You should make a motion, and whatever
8 motion that is, to seek an order to the Registry and then an order based
9 on what exactly and then to invoke whether it's also the matter with a --
10 pending at the president's office or whether it's just the present
11 discussion, we would have to know that in detail and in very concrete
12 matters and also formalised. You certainly achieved that you have drawn
13 the attention of the Chamber to the problems you are facing at this
15 MR. JORDASH: Your Honour, we'll do that.
16 JUDGE ORIE: You'll understand we can't just base any activity,
17 whatever it would be, a decision, order, otherwise intervening in
18 mediation, whatever, without having a concrete, formalised request, which
19 could be request for everything, let's say, give us another week, because
20 whatever it is, it's not entirely clear, apart that you are seeking the
21 support of the Chamber for something. You should make that concrete.
22 MR. JORDASH: Well, Your Honour, I'm --
23 JUDGE ORIE: Intervention at the Registry's level. I promised
24 something to our interpreters. We might have an opportunity to -- we
25 also further think about what you told us. We leave it to that at this
1 very moment, but we expect a formal initiative from you.
2 MR. JORDASH: As soon as we receive the OLAD's letter, we'll file
3 a written motion.
4 JUDGE ORIE: Okay. Then, I was talking about victimisation
5 earlier. What I feared would happen did happen. We adjourn as quickly
6 as we can. We will not sit tomorrow.
7 We, therefore, adjourn until Tuesday, the 1st of February,
8 quarter past 2.00 in the afternoon, Courtroom II.
9 --- Whereupon the hearing adjourned at 7.01 p.m.,
10 to be reconvened on Tuesday, the 1st day
11 of February, 2011, at 2.15 p.m.