Tribunal Criminal Tribunal for the Former Yugoslavia

Page 3799

1 Tuesday, 23 March 2004

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.12 a.m.

5 JUDGE PARKER: Good morning. When we were assembled yesterday, an

6 issue was raised whether there should be a closed session when two or

7 three maps were being considered by the witness who is shortly to be

8 called. The Chamber has had an opportunity to reflect on this overnight

9 and is not persuaded that there is demonstrated any justification for a

10 closed session in respect of the maps. They are in respect of military

11 operations in the year 1991, between what were then the belligerents.

12 There seems simply on the face of the document no basis for forming the

13 view that the national security of any State, in particular Serbia

14 Montenegro, today would be affected by the use of those maps in the

15 ordinary way in this Tribunal. And nothing has been put before us to

16 provide a foundation for the view that they would, and there has been no

17 request by any State for measures to be taken in respect of them.

18 Now, when we met yesterday in the afternoon in conference, counsel

19 for the accused foreshadowed that a matter would be raised this morning.

20 Is it convenient now, Mr. Petrovic?

21 MR. PETROVIC: [Interpretation] Thank you, Your Honour.

22 The issue that I would like to raise, very briefly, is the same

23 issue that was raised by me yesterday. I will be very brief, Your Honour,

24 and I will inform you about the developments.

25 What you see here in front of me, Your Honours, is the 37 hours of

Page 3800

1 material disclosed to us partially on Sunday and partially yesterday in

2 the afternoon. In accordance with your order, Your Honours, we spent most

3 of the day yesterday, and most of the night, trying to review this

4 material. We managed to review about 11 hours of that. We made a

5 conclusion, based on those 11 hours, and it is in line with what we stated

6 here yesterday, Your Honours. This may be called a proofing session, this

7 may be called anything else; however, it is an interview with new,

8 significant and key elements concerning the testimony of this witness.

9 Your Honour, I do not want to use up any more of your time.

10 However, we maintain what we stated yesterday, what was stated in our

11 motion of the 19th of this month, and we ask to be given extra time to

12 review this material in detail. Unfortunately, Your Honour, we are unable

13 to follow the examination-in-chief of this witness without having gone

14 through the material in its entirety.

15 If you should conclude that our request is not granted in view of

16 the importance of this issue, we would have to appeal your potentially

17 negative ruling. Should your ruling be negative, should we be denied this

18 opportunity to review and should you conclude that we have to go on with

19 examination-in-chief and cross-examination, then we would ask that this

20 testimony be stayed until there is a ruling on our appeal.

21 I hope you will understand that this is one of the key issues for

22 us, and we hope that you will have understanding for us. I do not wish to

23 repeat the arguments we stated yesterday. I will just say once again that

24 we maintain what we said yesterday. Just yesterday in the afternoon, we

25 received additional 11 hours of material. I hope that you will have

Page 3801

1 understanding for everything we have stated, and I hope that you will

2 concur with us on this matter. Thank you.

3 JUDGE PARKER: Mr. Petrovic, before you sit, the additional 11

4 hours, are they the audiotapes of the same interviews as the videotapes

5 you received?

6 MR. PETROVIC: [Interpretation] No, Your Honour. These 11 hours,

7 out of these 11 hours, two disks are the ones that were missing in the

8 interviews in February and the interviews on the 11th and 12th of March.

9 So this is something that we were never given initially, until Sunday

10 evening. So this is the first part of this 11-hour material.

11 The second part is an audio recording made, I presume, in the

12 Detention Unit of the United Nations after Admiral Jokic had arrived in

13 The Hague. So this is the fifth interview, if my counting is right.

14 JUDGE PARKER: The additional 11 hours is of yet a further

15 distinct interview, or most of it?

16 MR. PETROVIC: [Interpretation] I believe that is so. So one part

17 is a supplement to what we had not been given on Sunday, what was missing

18 on Sunday, and the other part is what was done in the Detention Unit.

19 JUDGE PARKER: Second question, Mr. Petrovic: You indicated that

20 you felt you could not follow the evidence in chief of the witness until

21 you had studied those. Could you explain why that is so.

22 MR. PETROVIC: [Interpretation] Your Honour, there are four or five

23 interviews in total. This is such an abundance of material that we simply

24 have no possibility to follow the examination-in-chief properly. We are

25 unable to react to anything that could come up in the courtroom and which

Page 3802

1 could be a completely new development or it may not be a completely new

2 development if it's already included in this material. We are simply in

3 the dark when it comes to two-thirds of the material.

4 So there could be something that is included in this material - a

5 document in evidence, anything - and we are completely in the dark. We

6 are not aware of it. We have no possibility to react to it properly. Not

7 to mention technical difficulties involved in following the testimony,

8 since this is all on a videotape and as such cannot be used in the

9 courtroom. We have already talked about this to our learned friends, and

10 we hope that some solution will be found, but this is what the situation

11 is at the moment, Your Honour.

12 JUDGE PARKER: Do I correctly understand from Ms. Somers that the

13 nature of the interviews, really being pre-trial briefings, were to go

14 through the content of two previous interviews of the witness and

15 focussing attention on those parts of the two previous interviews, those

16 limited parts of those that are relevant to this particular case? Or is

17 it that these interviews that you've now received are canvassing entirely

18 new issues?

19 MR. PETROVIC: [Interpretation] Your Honours, in those interviews,

20 they cover most of what has already been covered in previous interviews.

21 But what is different, Your Honours, the difference is in interpretation

22 of the developments, in the description of the role of the participants in

23 those developments. There are also completely new claims there, new

24 personalities, new explanations. So this does cover same events, there

25 are no other events, these are events from October and December --

Page 3803

1 November and December of 1991. However, there are completely new claims

2 included here.

3 On a number of occasions, Ms. Somers gave to the witness his old

4 statements and asked him, Well, last time, you said this. Why are you

5 changing your statement now? And new persons are introduced and the

6 witness is asked what new facts he had learned from those persons, and so

7 on. So these are just some examples.

8 For example, an operations officer who was subordinated to the

9 accused, or rather, shall I say the sentenced person, meaning Admiral

10 Jokic, this person, this officer was mentioned for the first time -- I

11 don't know on which date, but in this material. And then it is mentioned

12 that he gave some explanations and informed somebody and explained why

13 somebody was informed, and so on. So Dubrovnik operation is portrayed

14 differently, Your Honour, in this material and in the material that we

15 have analysed since August of last year.

16 If you wish, I can give you specific examples. But --

17 JUDGE PARKER: You have indicated sufficiently for me to

18 understand what it is that you are putting. Thank you.

19 MR. PETROVIC: [Interpretation] Thank you, Your Honour.

20 JUDGE PARKER: Ms. Somers.

21 MS. SOMERS: Thank you, Your Honours. First of all, the

22 Prosecution takes strong issue with the representations of the Defence.

23 They are simply inaccurate. Your Honours' understanding of what the

24 nature of the contacts with the former accused, Admiral Jokic, were is

25 correct, that it is a pre-trial briefing, which is expected of every

Page 3804

1 witness. The information hat the Prosecution had at its disposal from

2 this witness was the basis of any questions put -- of questions put. And

3 in terms of just to counter the assertion made by my learned friend about

4 an operations officer, there are some one, two, three -- at least ten

5 references to that operations officer in the second interview. So it is

6 quite absurd to suggest that new areas, new types of inquiry. The point

7 that Your Honour so rightly emphasised is that when you have a massive

8 amount of material that spans any subject matter relevant to a Rule 63

9 interview or a true interview, that a proofing session, a pre-trial

10 briefing with the witness - and that is his status now, witness - must

11 limit it. One must always inquire into any changes in position, one must

12 always -- and see if it is simply memory or if, in fact, there is a

13 fundamental change. And that is the purpose, to make sure the witness

14 stands by what he says; or if he doesn't, an explanation for the reason.

15 And that is how these matters are conducted.

16 It is simply inaccurate to suggest anything more than that. There

17 are only three sessions, Your Honours. There is the February, the March,

18 and the one day after Admiral Jokic's sentencing, which was Friday.

19 JUDGE PARKER: Now, is it the position that instead of the 26 and

20 three-quarter-odd hours, there are now an additional 11 hours?

21 MS. SOMERS: Your Honours, the totals would simply -- I did not do

22 a full count but the totals reflect the fact that there are breaks, that

23 there is interpretation, and that there are three sessions.

24 JUDGE PARKER: So you don't object or take issue with the

25 suggestion that now counsel are required to review something like 38 hours

Page 3805

1 of --

2 MS. SOMERS: Your Honour, in all honesty, I would have to do a

3 mathematical or arithmetic summary. Our point, Your Honours, is that the

4 statements, the interviews of Admiral Jokic from July 2002 and of

5 September 2003 form the basis for the session, that if the Defence has not

6 read those, that is not something we can control. If one goes and looks

7 very carefully at where the questioning is directed, it is evident that

8 this is where we are honing in from. We also suggest that if the Defence

9 needs additional time to review, then perhaps an application for

10 additional cross afterward, after the initial cross, which would certainly

11 be able to be conducted, given that the Defence has had for a long period

12 of time the statements that form the basis for Admiral Jokic's testimony.

13 JUDGE PARKER: That would be an inefficient way of approaching it,

14 surely.

15 MS. SOMERS: I think, Your Honours, that if the Court accepts that

16 this is simply a proofing based on the information and materials that had

17 been presented to the Defence, and any extra elaboration can be dealt with

18 perhaps at a later time, but that the critical issue, in our submission,

19 is that this is what it is, and the basis of the information for the

20 entire exercise has long been in possession of the Defence.

21 JUDGE PARKER: Thank you.

22 [Trial Chamber deliberates]

23 JUDGE PARKER: The Chamber is very concerned at the course of

24 these events. Can we indicate first in response to a submission that has

25 been put to us now twice by Ms. Somers that either this material was of

Page 3806

1 sufficient relevance to the Defence to require or to justify it being made

2 available, or it was not. The Chamber is not in a position to review the

3 material itself, but the fact that it was made available must necessarily

4 at the moment convey to us that it has potential materiality.

5 It being material, the question then is, as a matter of fairness,

6 what is proper provision to enable the Defence to absorb the material? In

7 that regard, we are able to form a view from what has been put by both

8 counsel as to the nature of the content in general terms. We accept from

9 what Ms. Somers has put that it is material in which the witness

10 essentially goes over past statements, indicating areas where there may

11 now be some difference, something additional which can be material to the

12 Defence. It's not the case, from what both Ms. Somers and Mr. Petrovic

13 have been able to indicate, that the witness is canvassing entirely new

14 issues.

15 That being the position, as we understand it, there are two

16 relevant consequences. First, the task of reviewing the material can be

17 dealt with more quickly than if it were material introducing entirely new

18 subject matter. And secondly, the task of actually reviewing what is on

19 the tape is something that can be proceeded with with some expedition, as

20 it is really a task simply of identifying any issue or any point at which

21 there is material departure from what had previously been the position and

22 noting the nature of that material departure.

23 We are concerned that the material now available to the Defence,

24 this additional material, is some 11 hours longer than was first indicated

25 to us. That, in our view, necessarily produces the result that the time

Page 3807

1 that we saw to be reasonable to allow a quick review of this material

2 sufficient for the purposes of the Defence in conducting its case is

3 simply now insufficient.

4 We are conscious that there are two senior, experienced Defence

5 counsel and the task of reviewing this material may be divided between

6 them. And we are conscious that it is possible for some of this work to

7 be concluded during the course of the evidence in chief of the witness.

8 For that reason, we are compelled, regrettably, to the view that it is

9 necessary yet again to postpone the evidence of the witness. We have

10 taken the view that a further full day should be made available to Defence

11 counsel to enable them to make a reasonable assessment of this material.

12 Yesterday they had what was really a part day because we sat much longer

13 in the morning than we will this morning and there was a conference in the

14 afternoon which extended over one-and-a-half hours or more. Today, there

15 will be no such interruption.

16 It is very regrettable that it is necessary yet again to adjourn

17 the trial and postpone the commencement of the evidence, but we feel the

18 interests of justice require it. Even so, we appreciate that what we

19 propose will make significant demands on Defence counsel. But we think

20 that the demands we propose are reasonable and manageable and will enable

21 them to be in an adequate position to be present and appreciate adequately

22 the evidence in chief of the witness, and to be, in the end, in a position

23 properly to cross-examine the witness.

24 For that reason, we, therefore, will adjourn now to resume again

25 tomorrow morning.

Page 3808

1 --- Whereupon the hearing adjourned at 9.39 a.m.,

2 to be reconvened on Wednesday, the 24th day of

3 March, 2004, at 9.00 a.m.