1 Monday, 22 March 2004
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.07 a.m.
5 JUDGE PARKER: Good morning to you all. We have resumed two days,
6 two sitting days later than expected. During the break, word was received
7 that the Prosecution had no witness available for the time we had intended
8 to resume. It seemed an unnecessary formality to have people attend on
9 Thursday, simply to go away again, especially because of the need for the
10 accused to come in from the Detention Centre and no doubt for counsel to
11 travel to The Hague. So an order was simply made informally for us to
12 resume again this morning. I just note that for the record.
13 Ms. Somers.
14 MS. SOMERS: Good morning, Your Honour, and Your Honours, counsel.
15 There are a couple of preliminary matters if the Chamber would permit. I
16 believe private session would be adequate, but I'd like to ask if we could
17 get some preliminary matters in private session. Thank you.
18 JUDGE PARKER: Yes. Mr. Petrovic.
19 THE INTERPRETER: Microphone for counsel.
20 MR. PETROVIC: [Interpretation] Good morning first of all,
21 Your Honour. I'm glad to see you all here in this courtroom again.
22 Before we go into private session, that's in as far as the Chamber
23 believes it necessary, if my learned friend and colleague Somers believes
24 it necessary to speak about our motion dated the 19th of March, in that
25 case, the Defence of General Strugar insists that this be done in open
1 session so that the international public can see and realise in which way
2 the Prosecution prepares their cases before this Tribunal and how trials
3 are run at this Tribunal. If there is something else she wishes to
4 discuss in private session, then we leave it to you to decide on that,
5 Your Honour.
6 JUDGE PARKER: Perhaps we better hear your reasons for private
7 session, Ms. Somers.
8 MS. SOMERS: Yes. The Prosecution has been served with no motion
9 at this point in time. Secondly, the issue concerns a request made by
10 another Defence counsel, and I don't know whether it has been brought to
11 the Court's attention. And the third concerns a matter that will
12 require -- concerns an exhibit which would need to be discussed in private
14 JUDGE PARKER: Well, we can deal with the other two matters not in
15 private session, it would seem. Let's deal with them.
16 MS. SOMERS: The other matter --
17 JUDGE PARKER: You don't have any formal motion from the Defence?
18 MS. SOMERS: I have received nothing.
19 JUDGE PARKER: If I can presume to put the Defence case very
20 quickly, they want an adjournment of the evidence of the next witness
21 because they received only last Friday evening tapes and records of the
22 interviews between the Prosecution and that witness. And I gather there
23 may even be more such tapes or records that they received today. And they
24 say they have not had adequate notice to prepare.
25 MS. SOMERS: Your Honour --
1 JUDGE PARKER: I think that summarises the position. No need to
2 stand. Yes, it does.
3 MS. SOMERS: Thank you. Your Honours, these are not interviews.
4 These are -- what the Prosecution provided as a courtesy was the
5 recordings of proofing sessions, and that's all it is. Those simply go
6 through the previously handed out statements with the witness. It is the
7 way all persons who practice before the Tribunal prepare their witnesses
8 for testimony. And that is all it is. There is no obligation by the
9 Prosecution even to turn that over. The issue for us is that we believe
10 there's nothing of 68 value in there. We leave it to the Defence to
11 review, again, as a courtesy to them, whatever they wish. This is the
12 same material that we would have to work with, and this is the only time
13 at which it can be available, when the proofing is completed.
14 JUDGE PARKER: What is the extent of this material? How many
15 pages of transcript?
16 MS. SOMERS: It's not transcript, Your Honour. We simply
17 recorded, and this is where if I may have a moment of private session to
18 explain why, I would explain the policy behind it.
19 JUDGE PARKER: You have recorded. How long is the recording or
21 MS. SOMERS: We have one session of three days, and I think the
22 tapes max out at four hours. Another session of two days, and the tapes
23 may have run maybe two full days. And then Friday's last session of an
24 audiotape. The other two are video/audio, and the last one is audio.
25 JUDGE PARKER: What does that add up to in hours roughly? There
1 must be a mathematical genius among you there.
2 MS. SOMERS: Perhaps 20 plus or minus. There are, of course,
3 breaks on the tapes. And our view, Your Honour, is the Defence have at
4 least three days while we present the case in chief. And if they review
5 them and they find that there's some issue they wish to add to their
6 cross-examination, then they have the ability to do so. But they have to
7 work with the same conditions that we are working. But this, again,
8 Your Honour, is something that was provided merely as a courtesy.
9 JUDGE PARKER: Thank you. Before we go on to the other matter, I
10 think we will hear the Defence on that. Mr. Petrovic.
11 MR. PETROVIC: [Interpretation] Thank you very much, Your Honour.
12 I would like to ask you the following. May I be allowed to address this
13 issue in a lengthy way. When I say lengthy, it certainly doesn't mean
14 that I will be taking more than five or six minutes.
15 Your Honours, it has been the case on several different occasions
16 before this Honourable Chamber that we face situations where obligations
17 that had been ruled upon in your decisions, obligations that are envisaged
18 in the Statute and the Rules, these obligations have been violated,
19 recklessly violated. In this particular situation, I believe,
20 Your Honours, the whole thing has grown out of volume. The witness that
21 is bound to appear before you today, as you know full well, is a man who
22 was co-indicted, together with our defendant, General Strugar. The man
23 who is bound to appear before you today is a man based on whose testimony
24 the Prosecution has built up the best part of their case. We said 50 per
25 cent of their case, but I may even go as far as to say more than 50 per
2 If you just look at the pre-trial brief of the OTP, most of the
3 footnotes, most of the quotations are based on what my learned friend and
4 colleague Ms. Somers expects to hear from Admiral Miodrag Jokic.
5 Your Honours, I'm sure you remember very well that on the 4th of March
6 this year, following a request by the Defence, you bound the OTP, before
7 this brief interruption in the trial, to inform the Defence team and
8 everyone else as to who would be taking the stand. You repeated this
9 request on the 9th of March, requesting that on the 9th or the 10th of
10 March, both the Trial Chamber and the Defence be informed as to who the
11 following witnesses will be.
12 Your Honours, on the 16th of March at 12.00 was the first time we
13 were duly informed as to who the next witnesses would be and who would be
14 taking the stand. But it's only a small part of the problem,
15 Your Honours. It is well known that the Chamber and the Defence must be
16 notified at least seven days ahead of time. However, as I said, this is
17 only a very small part of the problem.
18 On Friday afternoon, at 14.55 hours, we were informed that there
19 is apparently an interview by Admiral Miodrag Jokic, some material related
20 to this interview, that there had been an interview in February. We were
21 informed in writing that there was an interview that was conducted in
22 March. Your Honours, I am really quite surprised at my learned friend and
23 colleague has not been able to sum up exactly how much, how many hours
24 that was. 26 hours and 48 minutes of material. This is a rather lengthy
25 interview conducted in the presence of an OTP senior trial attorney in the
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 presence of an investigator, in the presence of two Defence counsel for
2 Admiral Miodrag Jokic. This is an interview which in its entirety is
3 equivalent to an interview conducted with an indictee before this
4 Tribunal, and this is fully equivalent to the kind of interview that
5 Admiral Jokic gave both in 2002 and 2003.
6 Furthermore, Your Honours, as everyone in this courtroom knows, we
7 received those documents only last night. We are talking about 17 CDs,
8 Your Honour. A while ago, I heard that there were also some audiotapes
9 that were available. First I hear of it, Your Honours. Not only does the
10 Defence not have these tapes in our possession, this is the very first we
11 hear of their existence. This morning, right now.
12 Your Honours, we have succeeded last night in reviewing one of
13 those CDs, the interview that was conducted in March. This, Your Honours,
14 is an interview, an interview that contains a lot of new information,
15 completely new elements in relation to everything that we have heard in
16 previous interviews, those conducted in 2002 and 2003.
17 Your Honours, I'm basing this account on merely one segment, a
18 single hour of the interview that we have been -- that we have managed to
19 go through. What about the remaining 26 hours and 45 minutes,
20 Your Honours? We can only speculate. There is not even a transcript, so
21 how should we be expected to be in a position to conduct a
22 cross-examination of a key witness before this Chamber? How should we be
23 in a position to follow the examination-in-chief if we don't even have a,
24 transcript, let alone, Your Honours, we do not even have an overall idea
25 as to what those almost 27 hours of material are about.
1 If you would just look at the dates, Your Honours, the 16th of
2 February, that was 40 days ago nearly. Is it possible that no one told us
3 about this during those 40 days? Why were we not given this material
4 immediately? Is this perhaps being done deliberately? Are the OTP doing
5 this deliberately? Or perhaps, with all due respect, Your Honours, I must
6 pose the issue. Perhaps they are incompetent to be doing this job. Your
7 Honours, we had ten days at our disposal in the month of March, six of
8 which we simply lost, wasted simply because the OTP were not able to
9 organise themselves properly. They are wasting your time, Your Honours.
10 They are wasting our time. They are wasting and squandering vast
11 resources of the international community. It is either that they are not
12 able to do their job properly or they simply don't want to.
13 At this point in time, Your Honours, not having had an opportunity
14 to consider these documents or the transcript, we are simply not able to
15 follow the examination-in-chief, and we are completely in the dark,
16 Your Honours, in relation to this key witness, Admiral Jokic. I'm sure
17 you are fully aware of the fact that Admiral Jokic is a key witness in
18 this case. The Defence should not be prejudiced on account of someone's
19 lack of due diligence, on account of the fact that someone is either
20 unable or unwilling to do their job properly. It is in our best interest
21 to see this trial through as expeditiously as possible, but there is
22 someone in this courtroom who either is not able to do their job or is not
23 willing to do their job properly.
24 You remember that even before this break in the trial, we were
25 facing these very same problems. There were witnesses coming in to the
1 courtroom bringing with them key documents, witnesses who had been wounded
2 bringing documents. They had given their statements years ago, as you
3 know very well, Your Honours. I need not return to that now. If you will
4 only remember the man who was supposed to come who was bringing the tapes.
5 What were we told about that and what was done in that particular case?
6 Your Honours, there is simply no way for us to follow even the
7 examination-in-chief. We know nothing, it is my submission here today.
8 We know nothing at all about Admiral Jokic's testimony. We only have his
9 interviews to go on, his interviews dated one and two years ago. But this
10 man spent 20 hours with his counsel in a conversation with Ms. Somers.
11 What did he say during that interview? What was his explanation of
12 developments? There is no way for us to know, and we do not know what he
14 And may I just add, Your Honours, even what we have been given, we
15 only looked at the first CD dated March. The CD begins in the following
16 way: Someone says "we'll continue after the break." What about before
17 the break? Even what they did in February and March, they were not able
18 to or willing to deliver these documents to us. Without taking into
19 consideration at this moment the 27 or more hours of testimony by this key
20 witness, not a word is said about this, Your Honours. It is as simple as
21 that. In our motion, we requested that the whole thing be deferred, but
22 there is something else also that we are hereby requesting. And it is for
23 you, Your Honours, to ascertain that unfortunately the OTP have been
24 violating the rules. They have been failing consistently to comply with
25 your rulings and decisions. Your Honours, you must rule that this
1 practice be stopped. It is your duty at this Tribunal. Thank you for
2 allowing me this opportunity to address these issues, Your Honours.
3 JUDGE PARKER: Mr. Petrovic, it's put to us by Ms. Somers that
4 this is merely the record of the proofing interview, and in the
5 Prosecution's view, it contains nothing new of significance. But it is
6 provided as a matter of courtesy. You haven't dealt with that in your
8 MR. PETROVIC: [Interpretation] Your Honours, this is an inadequate
9 explanation for the fact that a new interview was conducted. As I said,
10 we have been able to review merely one portion, a very small portion, of
11 the document. Your Honours, in terms of form or essence, this is no
12 different from the previous interview. What's more, Your Honours, in this
13 very small portion, we have observed some significant discrepancies in
14 relation to what had been said before, in relation to what we have had a
15 chance to review. Your Honours, this is not a 27-hour proofing session;
16 this is a whole new statement that is being made by this witness. They
17 may choose to refer to this new interview whichever way they like. But to
18 all practical intents and purposes, this is an entirely new statement made
19 by Witness Miodrag Jokic who had been co-indicted. They may as well
20 choose to call it a proofing session or whatever else they like to call
22 But in terms of its form or its essence, it is no different from
23 what had been done in the year 2002 and the year 2003. In terms of
24 content we have only been allowed a partial insight into the contents of
25 this document, which causes us great concern. This is a considerable
1 difference between what we have in our possession and what we -- and how
2 much time we have been allowed to prepare our Defence case.
3 We have been preparing for one thing, and now we're facing
4 something new all together, which we are only able to see in part, which
5 we are only able to judge in part. Please, Your Honours, allow us to
6 defend properly before this Tribunal the accused Pavle Strugar, and do not
7 allow the OTP to continue to act in this way.
8 JUDGE PARKER: Thank you, Mr. Petrovic.
9 [Trial Chamber and Registrar confer]
10 JUDGE PARKER: Ms. Somers.
11 MS. SOMERS: Thank you, Your Honour. First of all, I would like
12 to indicate I find the submissions of the Defence both untrue and
13 offensive. But having said that, I will -- I want to make it very clear
14 to the Chamber what a proofing session is. Perhaps it is unclear how
15 witnesses are prepared to come to Court, whether it is a former accused,
16 whether it is a fact witness, whether it is an expert. The testimony in
17 the form of all prior statements is reviewed with a witness. In this
18 instance, the testimony or prior statements of the accused, former accused
19 Mr. Jokic, Admiral Jokic, are two interviews, one from the summer of 2002
20 of hundreds of pages, and the other of September 2003 following the entry
21 of the plea of guilty, which is also several hundred pages.
22 In order to distill from those interviews what is relevant for
23 this Trial Court, the Prosecution proofs its witnesses and reduces its
24 issues and goes over the test, to make sure the witness knows where the
25 Prosecution will ask him or her to direct his attention. That is all a
1 proofing is. It is not normally recorded. The reason for this, again, I
2 was going to reserve it for private session, perhaps it's not necessary,
3 is that every aspect of cooperation of Admiral Jokic is documented. Every
4 contact is documented, as he has the rights to seek -- for purposes of
5 his -- up to the time of a judgement, the Trial Chamber I had the right to
6 know and requested the right to know how the Prosecution would evaluate
7 cooperation. That is our way of doing it.
8 And in fact, Defence counsel, in a most uninformed manner,
9 describes what the Prosecution does with its witnesses. The Prosecution
10 has an obligation to make sure the witness is directed to the areas that
11 are relevant. An interview under Rule 63 or any other type of interview
12 can be very, very broad because more than one case, for example, can be
13 touched. The purpose of this set of interviews -- I'm sorry, these are
14 not interviews. The purpose of these proofings - and I take strong issue
15 with the term "interview" - is simply to take what has already been said
16 by the admiral, to make sure that he is aware of his own statements.
17 After all, in one instance, two years has gone by, in another instance,
18 some six or seven months has gone by. No human being is going to be able
19 to know where the Prosecution will direct his attention. And it's the
20 sole purpose. This is done for every single witness.
21 Accordingly, it is our view that certainly there is no obligation
22 whatsoever to present this. The purpose of the recording was for another
23 Trial Chamber altogether. And again, it's given strictly as a courtesy to
24 this Defence team so that it may have the benefit, if it wishes to so
25 engage, or it can throw the tapes away if it wishes, to simply take a look
1 and make sure it doesn't find anything of interest in the way of changes.
2 Again, our view is there is no 68. And the length is misleading. It is
3 -- it's interpreted, it's done in the Serbo-Croatian language, and of
4 course it's interpreted. So there's English, there's Serbo-Croatian.
5 It's always going to have more time. But this is the reason behind it.
6 And the Prosecution is very mindful of the obligations to persons who
7 plead, and its obligation is to make sure that all cooperation is brought
8 to the attention of the sentencing or Appellate Chambers. And this is a
9 record strictly for that purpose.
10 Again, we normally proof without the benefit of even having to do
11 that. And this is the sole reason it was done. And it was limited to the
12 areas of inquiry based on what Admiral Jokic had said in his statements,
13 and nothing more. There was nothing sinister. There was no delay meant
14 to be interposed. We are prepared to go forward, as should the Defence
15 be. And there's no reason, again, for the tirade that was just launched
16 against the Office of the Prosecutor. We all work very hard to try to get
17 this case moving forward and get the best evidence before this Chamber,
18 and we are prepared to go forward today, and we submit the Defence is
19 making an unwarranted noise over something it doesn't even have -- really
20 necessarily have to have in its possession.
21 JUDGE PARKER: Is there a reason, Ms. Somers, why these tapes were
22 not provided until Friday evening, that being illusory in that Defence
23 counsel were clearly not in The Hague at that time, and it seems Sunday,
24 last evening, that they actually obtained them? Is there a reason for the
1 MS. SOMERS: Your Honour, we finished -- we were in the field
2 during the week of the Chamber's recess, meeting with the admiral. So the
3 March tapes are from there. And then after the admiral was sentenced,
4 there was one more meeting. Upon my return on Wednesday, we immediately
5 proceeded to the sentencing, and then we met with the admiral the next
6 day. And those are the recent ones. The February ones are -- I have to
7 apologise. Upon my return, with my own personal circumstances, there may
8 have been some delay. But I will say there was no delay in the decision,
9 because the decision was only made at the very end as a policy that it
10 might be helpful, might not be helpful to the Defence. There was no
11 thought that they would even have to have these. We felt just in an
12 abundance of benefit we made a policy decision to give them. Again, no
13 obligation is there. So the preparation of tapes would not necessarily
14 have even been a factor. They were provided for the Trial Chamber,
15 Chamber I, or available for that Chamber.
16 [Trial Chamber deliberates]
17 JUDGE PARKER: We accept the assurances of Ms. Somers that this is
18 a recording of a briefing session of the witness. And for that reason, it
19 may strictly not be a matter to which the Rules apply; rather, it is a
20 matter of what is fair in the circumstances. The witness is a most
21 important one, and everyone will appreciate that it is important for the
22 Defence counsel to have reasonable opportunities to consider relevant
24 It seemed to the Chamber that there were two ways forward at the
25 moment. One would be to leave it to Defence to review the tapes as the
1 evidence-in-chief progressed. The alternative would be to allow some
2 short time now for them to assess the content of the material. We do see
3 those two courses as being ways of enabling Defence counsel to master the
4 material that is now provided, which clearly has relevance, potentially,
5 to their case, even though it may be material which is not strictly
6 covered by the Rules.
7 The Chamber is of the view that in the unusual circumstances
8 presented by this, that some give-and-take is necessary. But that as a
9 matter of basic fairness to the Defence, some time must be allowed for
10 them to master the material in the tapes. They have already viewed one of
11 the tapes. We understand that some of it may be in length, the product of
12 the combination of the two languages and interpretation, so the viewing of
13 the tapes undoubtedly can be speeded up by moving quickly over the
14 translations once the language is first identified that is most suitable
15 to those viewing the tapes.
16 In those circumstances, what we propose, Mr. Petrovic, is that we
17 should not commence the evidence of the witness today, but we will
18 commence the evidence of the witness tomorrow morning. That will give
19 Defence counsel some time to master what is in the tapes. If more time is
20 needed, it will have to be found by Defence counsel in the hours outside
21 of hearing during the week. We think by this means that we will have gone
22 a very long way to enabling Defence counsel to assess this material, it
23 being material, strictly on the assurance of Ms. Somers as to its content,
24 which is outside the obligation which strictly exists for the provision of
1 So that, then, is the ruling of the Chamber. We will commence the
2 evidence of the witness tomorrow and encourage Defence counsel to be very
3 assiduous in their work.
4 Now, there were two further matters. You rise, Mr. Rodic.
5 MR. RODIC: [Interpretation] Your Honour, I apologise for
6 interrupting and insisting to be heard, despite your explanation. For
7 these very reasons, I allowed my colleague Petrovic to speak because of
8 what --
9 JUDGE PARKER: Mr. Rodic, you're not going to have two goes at the
10 submission. We have heard the submission, considered it, and made our
12 MR. RODIC: [Interpretation] Thank you, Your Honour.
13 JUDGE PARKER: There were two other matters, Ms. Somers.
14 MS. SOMERS: Your Honour, one is the request of the -- of
15 Admiral Jokic's Defence counsel to be present in the courtroom during his
16 testimony. And I believe it has been brought to the Chamber's attention,
17 perhaps, but I'm not aware of what the decision is, and I have been asked
18 to raise it.
19 JUDGE PARKER: Counsel for a witness has no automatic right of
20 audience, and that will be the position. But as counsel, the Chamber
21 would allow the courtesy for counsel to be present in the Chamber. And a
22 seat will be found, probably on the far side. But with no right of
23 audience as such.
24 MS. SOMERS: Thank you, Your Honour. Understood. The --
25 JUDGE PARKER: Mr. Rodic, you rise again.
1 MR. RODIC: [Interpretation] Your Honour, I think that this is a
2 new topic that we're discussing now, and the Defence has a position with
3 respect to it. So I would like to be heard so that you can then decide,
4 having heard both parties, on the matter of the counsel being present.
5 JUDGE PARKER: It seems to the Chamber, Mr. Rodic, not to be a
6 matter that was relevant to the conduct of the Defence case at all. The
7 presence of somebody in the Chamber as a matter of courtesy is not going
8 to affect the conduct of the proceeding. That is the reason why I did not
9 turn to you for submissions.
10 Now, in light of that, as you are on your feet, if there's
11 something you believe is pertinent, we will hear you this time. But
12 understand it was not out of a want of appreciation of your position, but
13 an appreciation that it was really not a matter that could affect you that
14 we indicated the position of the Chamber.
15 MR. RODIC: [Interpretation] Your Honour, I simply wanted to say
16 that Mr. Jokic has been sentenced, has received his final sentence, and
17 that he comes here to testify as a witness. Therefore, if the counsel who
18 represented him in a previous case, so if his counsel wishes to be present
19 or Admiral Jokic wishes his counsel to be present in the courtroom,
20 however without the right to communicate between each other, because as a
21 counsel of a witness, we really should not be allowed to communicate with
22 him, then obviously it is up to you to make a decision on this issue.
23 However, if he, as a counsel, is given a right to communicate with his
24 client, the witness, during the testimony, then we would strongly oppose
25 his presence in the courtroom. He can provide moral support by simply
1 being present in the public galley because he was the counsel who
2 represented him prior to Admiral Jokic being sentenced.
3 JUDGE PARKER: Thank you, Mr. Rodic. It is in the understanding
4 that there will be no formal right of representation or right of
5 conversation with the witness during the hearing that the ruling is made.
6 It's merely a courtesy of allowing a member of the profession who has
7 instructions from a witness to be present in the courtroom rather than in
8 the public gallery.
9 MS. SOMERS: Thank you, Your Honour.
10 JUDGE PARKER: Is there a further matter?
11 MS. SOMERS: There is, Your Honour. It has to do -- and perhaps I
12 should just go ahead and raise it. It is a matter that will require
13 private session. It deals with a couple of exhibits. And may I just
14 inquire of the Chamber if the 65 ter conference is still set for this
15 afternoon? We had not had any communication.
16 JUDGE PARKER: It is, at 3.00, in Room 177. I hope it will not be
17 a lengthy hearing. It shouldn't need to be. I say that now because we
18 want to limit the disturbance of the time available to Defence counsel to
19 review those tapes.
20 MS. SOMERS: Understood. We have not been presented with an
21 agenda, so I'm not clear if there's a particular line of questions that
22 will be raised.
23 JUDGE PARKER: The issue essentially is to review the future
24 conduct and timetable of the case. It seems pertinent to the Chamber to
25 look now at what witnesses remain in the Prosecution case and how long the
1 evidence may be anticipated. As it is clear that we have not only lost
2 time in the recent days, but we have taken longer than was earlier
3 anticipated over the witnesses so far. And we need now to review the
4 position, see whether there are matters of evidence that may yet be agreed
5 or as to which evidence may be limited in some way with a view to the time
6 involved. And we will also, of course, be having a preliminary
7 consideration of the Defence case and the time that it may take.
8 We will also be raising informally the question of where we are
9 with the medical reports and what procedure should be put in place for
10 hearings of that issue.
11 MS. SOMERS: Thank you, Your Honour. If I may address the last
12 issue in private session, please.
13 JUDGE PARKER: We will go into private session.
14 [Private session]
12 Page 3794 – redacted – private session.
12 Page 3795 – redacted – private session.
12 Page 3796 – redacted – private session.
12 Page 3797 – redacted – private session.
7 --- Whereupon the hearing adjourned at 10.04 a.m.,
8 to be reconvened on Tuesday, the 23rd day of March,
9 2004, at 9.00 a.m.