Tribunal Criminal Tribunal for the Former Yugoslavia

Page 10162

 1                           Wednesday, 20 January 2010

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 2.19 p.m.

 5             JUDGE PARKER:  Good afternoon, and we welcome you back.

 6             Mr. Djordjevic -- Djurdjic.

 7             MR. DJURDJIC: [Interpretation] Yes, Your Honour.  I hope that you

 8     have received our notice.  Unfortunately, the Defence will not be able to

 9     bring forward its witnesses during this week for reasons that are beyond

10     our control.  We have done our best to secure the witnesses we wanted to

11     call and then to try to bring other witnesses in their place; however,

12     all the witnesses are sticking to the plan determined in advance and all

13     of them had prior commitments.  So we were unable to secure a new witness

14     for this week.

15             I think that you did receive my notice.  I don't know if there's

16     any need for me to repeat that the witness was on his way to the airport,

17     his ticket was purchased, but then on the way there he fell sick and had

18     to be taken to the emergency room.  And this is something that we were

19     notified about by the office for liaison with the International Tribunal,

20     and then we were in touch with the witness who said that he would not be

21     able to testify this week because he would be undergoing medical tests.

22             JUDGE PARKER:  Thank you, Mr. Djurdjic.  It is, of course, a very

23     unfortunate start to both the hearing of the Defence witnesses, other

24     than the accused, and to the programme to complete this case, which had

25     been listed with a view to completion as early as possible this year.

Page 10163

 1             The Chamber is conscious that the health of witnesses is

 2     something that is not directly within your capacity to control.  You will

 3     recall that it was for that reason, partway through the Prosecution case,

 4     the Chamber required the Prosecution always have a reserve witness ready

 5     in case there was some difficulty with a witness.  Now, it's probably a

 6     little early in your case to make such a requirement on you, but the

 7     Chamber will certainly watch the developments in the next few weeks.  And

 8     if that proves to be the case, if we are losing time, we will look at the

 9     feasibility of requiring that you, too, have a reserve witness available,

10     because we don't want to find ourselves in the position of simply losing

11     time because of witness unavailability or because witnesses have taken it

12     upon themselves to organise their affairs to be available for only a day

13     or two when the progress of this case may require them to come a little

14     earlier or a little later.

15             That having been said, we really are in a position where we must

16     adjourn with a view to commencing when your next witness is available,

17     which we believe is next Monday.  Is that correct?

18             MR. DJURDJIC: [Interpretation] Yes, Your Honour.  The witness and

19     the witnesses after that have all been confirmed and everything should be

20     all right.  Unfortunately, we don't have a problem in telling how long

21     the witnesses will stay here but when they are able to come, considering

22     their prior obligations.  So in that sense, the scheduling is a problem.

23             But if I may be permitted to put two administrative matters to

24     you, because we will not be seeing each other until the next witness.

25     One of them is a request for Ms. Marie O'Leary and Mr. Aleksandar Popovic

Page 10164

 1     to be allowed to also question witnesses, and also clarification if the

 2     rule that applied to the Prosecutor for short summaries to be provided

 3     before the testimony would also apply to the Defence, pursuant to

 4     Rule 92 ter.

 5             JUDGE PARKER:  We will certainly continue the procedural order

 6     which allows those lawyers assisting you to examine and re-examine the

 7     witnesses that you call, which seems to be a system which works well for

 8     the Defence and does not interfere with the due process of the trial.

 9             The procedural orders, if there is any doubt, we will reiterate,

10     are the same for the Defence as for the Prosecution so that you do need

11     to have a short summary if a witness is to be called pursuant to

12     Rule 92 bis or ter.

13             Is there any procedural matter that you need to raise, do you

14     think, Mr. Stamp?

15             MR. STAMP:  Yes, Your Honour, very, very briefly.  There's one

16     that I would like to raise now, and one that I should indicate that we

17     are contemplating raising perhaps after some discussion with the Defence.

18             On the Defence witness list there are approximately 30 witnesses

19     for whom -- in respect to whom we have been provided with summaries,

20     fairly short summaries, but no statements.  I would ask that the

21     statements -- or the Court order that any statements from these

22     witnesses, if they exist because sometimes they do not exist, be

23     delivered to the Prosecution under Rule 67.  It is probably a request --

24     or certainly it is a request that ought to have been made at an earlier

25     time, but I don't think there is any time limitation as to when that

Page 10165

 1     request can be made.  The Rule is 67(A)(ii) which grants the Chamber the

 2     discretion to order the Defence to supply or to furnish these statements

 3     if they exist.  That is the first matter.

 4             JUDGE PARKER: [Microphone not activated].

 5             THE INTERPRETER:  Microphone, please, Your Honour.

 6             JUDGE PARKER:  Your reliance on Rule 67 appears to indicate that

 7     there has been a non-compliance.  Is that what you're saying?

 8             MR. STAMP:  No, Your Honour.

 9             JUDGE PARKER:  What are you saying then?

10             MR. STAMP:  We have --

11             JUDGE PARKER:  These are statements of witnesses whom the Defence

12     intends to call?

13             MR. STAMP:  Indeed, Your Honour.  We have received no statements,

14     but we are not in a position to say whether or not statements do exist,

15     so therefore we cannot categorically say that there has been a

16     non-compliance.

17             JUDGE PARKER:  So it's your lack of knowledge whether there is a

18     statement at all?

19             MR. STAMP:  Indeed, Your Honour.

20             JUDGE PARKER:  But you are saying none have been received?

21             MR. STAMP:  None have been received.

22             JUDGE PARKER:  At all?

23             MR. STAMP:  At all.  None of the statements of the witnesses who

24     are not subject to applications under Rule 92 ter, to be absolutely

25     clear.

Page 10166

 1             JUDGE PARKER:  Very well.

 2             We have or at least I have with other Judges in the past

 3     encountered situations where a practice was adopted by the Defence of not

 4     taking a formal statement with a view to avoiding Rule 67.  We dealt with

 5     that by requiring that their proofing notes be provided in lieu of a

 6     formal statement.  I mention that now so that when you discuss this

 7     matter with the Defence, as you are foreshadowed, you will be able to,

 8     both of you, consider the question whether there is any documentation

 9     which ought now to be provided to the Prosecution.

10             In one sense, it is fortunate perhaps that we have these next

11     three days with no witness available, in that you and the Defence will be

12     able to spend that time resolving any of these procedural difficulties.

13     If they are not, of course, resolved, you should raise them again next

14     Monday, raise that matter again on Monday.

15             MR. STAMP:  Thank you very much, Your Honour.

16             JUDGE PARKER:  Now, is that the only matter you wanted to raise?

17             MR. STAMP:  That is, Your Honour.

18             JUDGE PARKER:  Regrettably then, but necessarily, the only course

19     open to us now is to adjourn until Monday morning.  We look forward then

20     to a regular and continuous stream of witnesses, Mr. Djurdjic, so that we

21     can proceed to deal with the witnesses that you intend to call.  And we

22     would hope that by then most, if not all, of the motions that you have

23     recently filed can be dealt with by the Chamber.

24             We now adjourn.

25                           --- Whereupon the hearing adjourned at 2.32 p.m.,

Page 10167

 1                           to be reconvened on Monday, the 25th day of

 2                           January, 2010, at 9.00 a.m.