1 Monday, 29 September 2014
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.16 p.m.
5 JUDGE DELVOIE: Good afternoon to everyone in and around the
7 Mr. Registrar, could you call the case, please.
8 THE REGISTRAR: Good afternoon, Your Honours. This is the case
9 IT-04-75-T, The Prosecutor versus Goran Hadzic. Thank you.
10 JUDGE DELVOIE: Thank you.
11 May we have the appearances, please, starting with the
13 MR. OLMSTED: Good morning -- or good afternoon, Your Honours.
14 It's Matthew Olmstead, Douglas Stringer, and Thomas Laugel for the
16 JUDGE DELVOIE: Thank you.
17 For the Defence, Mr. Zivanovic.
18 MR. ZIVANOVIC: Good afternoon, Your Honours. For the Defence of
19 Goran Hadzic, Zoran Zivanovic and Christopher Gosnell. Thank you.
20 JUDGE DELVOIE: Thank you. I have a short oral decision.
21 On the 17th of September, 2014, following the cross-examination
22 of Milenko Dafinic, the Prosecution tendered Rule 65 ter numbers 06637
23 and 06638 for the purpose of impeachment. The Defence objected. The two
24 documents contain allegations against Milenko Dafinic made by individuals
25 who are not witnesses in this case.
1 After considering the submissions of the parties made at a time
2 of tendering as well as the fact that the witness expressly denied the
3 truth of the claims contained therein, the Chamber finds that it will not
4 be assisted by having the documents admitted into evidence.
5 Therefore, admission of the documents with Rule 65 ter numbers
6 06637 and 06638 is denied.
7 Mr. Zivanovic, I think you have submissions to make.
8 MR. ZIVANOVIC: Yes, Your Honours.
9 The submission concerns the Trial Chamber's decision of 26
10 September 2014 denying the Defence motion for admission of DGH-016's
11 statement pursuant to Rule 92 ter.
12 The Defence's request is two-fold: First, to reconsider the
13 decision; second, if the Chamber is not minded to grant reconsideration,
14 to grant an adjournment to permit further preparation of the
15 Witness DGH-016's testimony.
16 [Trial Chamber and Registrar confer]
17 [Trial Chamber and Legal Officer confer]
18 JUDGE DELVOIE: Just give us a moment, please.
19 MR. ZIVANOVIC: Yes.
20 [Trial Chamber confers]
21 [Prosecution counsel confer]
22 JUDGE DELVOIE: Sorry, Mr. Zivanovic, for the interruption.
23 Please continue.
24 MR. ZIVANOVIC: Thank you.
25 The Defence also requested certification of the Trial Chamber's
1 decisions -- decision but relies on its submission in writing.
2 Reconsideration is warranted on at least two grounds.
3 First, the timing of the rendering of the decision has impaired
4 the Defence's preparations for the witness's testimony. Although it may
5 be true that the Defence has no legitimate expectation that any given
6 Rule 92 ter motion should be granted, the uncertainty as to whether it
7 would be granted substantially slows down the preparation of the witness.
8 This is particularly the case in respect of a witness whose statement is
9 as long, detailed, comprehensive, and document-intensive as that of
11 The difference between having to adduce all of those 52 pages of
12 content viva voce and being able to rely on the statement as admitted is
13 very substantial. A decision coming just five days before the witness's
14 appearance substantially impaired the Defence's preparations. This
15 favours reconsideration, as the timing of the decision has impaired the
16 Defence's ability to prepare.
17 The Prosecution's preparation, on the other hand, has not been
18 equally impaired. The cross-examination would, in either event, rely on
19 the witness's statement as impeachment material, regardless of whether it
20 is admitted or not. The nature of cross-examination preparation is
21 therefore not equally uncertain as is the preparation of direct
23 The second basis for reconsideration, respectfully, is the Trial
24 Chamber's characterisation of DGH-016's testimony as unique and its
25 potential importance to a very broad range of allegations in the
1 indictment. It is paragraph 16 of the decision.
2 In a sense, every important witness is unique and addresses a
3 range of allegations in the indictment, but DGH-016's testimony is no
4 more unique and no broader than two very important Prosecution witnesses
5 whose testimony was heard pursuant to Rule 92 ter, GH-002 and GH-016.
6 Those two witnesses held positions that are indistinguishable from that
7 of DGH-016, testified on the same or similar subjects as DGH-016,
8 involved statements somewhat shorter than DGH-016, and, therefore,
9 presumptively saving less courtroom time than DGH-016. And GH-002, like
10 DGH-016, had previously testified viva voce once and given one previous
11 statement to the Office of the Prosecutor, thus providing additional
12 impeachment material and that would be the case in respect of first-time
14 In fact, GH-002 and GH-016 were much more unique an important to
15 the Prosecution case than is DGH-016 to the Defence case. The Defence is
16 set to call seven government ministers, whereas, the Prosecution called
17 only two. Given this context - that the Chamber will have heard nine
18 government ministers by the end of this case - DGH-016's testimony cannot
19 properly be described as unique. This justifies reconsideration. Both
20 of those Rule 92 ter decisions, for Your Honours' reference, was 2nd
21 November, 2012.
22 If Your Honours are not minded to reconsider your decision
23 denying the admission of DGH-016's statement pursuant to Rule 92 ter,
24 then an adjournment is requested to permit further pre-testimonial and
25 interviews with the witness. We also request an increase in the time to
1 examine the witness from five to 12 hours. Those requests are justified
2 and necessary on the following grounds:
3 First, Your Honours have expressed a preference in paragraph 18
4 of your decision that the procedure of putting the Prosecution's case and
5 evidence to a witness "be carried out by the calling party in court
6 during direct examination." If the Defence is to fully and
7 comprehensively comply with that preference, more time will be required
8 for the witness to address those matters as they were covered in his
10 Second, the witness statement whose admission was denied on
11 Friday is lengthy and complex. Your Honours have seen the number of
12 documents which are associated with that statement amounts to over 100.
13 While many of these documents are already in evidence, 35 are not, and
14 the witness also comments on a number of exhibits that have been admitted
15 as Prosecution Exhibits. Substantial additional time is required to
16 prepare the witness to answer questions that are set out at length and in
17 detail in the statement.
18 Third, the five hours originally planned for the witness's
19 testimony are inadequate to adduce the witness's entire testimony. The
20 five hours originally allocated to the witness was predicated on the
21 admission his statement pursuant to Rule 92 ter. Those five hours were
22 allocated because of the large number of judicial documents - orders to
23 conduct investigations, investigation reports, indictments, and
24 judgements against perpetrators, which the Prosecution, in this case, has
25 conceded at transcript page 9918 were absolutely relevant. Your Honours
1 also received notice on 18 September 2014 that the original number of
2 relevant documents to use with the witness's testimony had increased to
3 600 and, I believe, 50, from the original estimation. 686 -- 85, sorry.
4 A suitable period of adjournment is one week. In the
5 alternative, the Defence requests any lesser adjournment as the Trial
6 Chamber may deem in the circumstances.
7 Thank you.
8 JUDGE DELVOIE: Thank you, Mr. Zivanovic.
9 Is there a response from the Prosecution?
10 MR. OLMSTED: Yes, Mr. President.
11 A motion for reconsideration requires a showing of either a clear
12 error of reasoning in the underlying decision or that reconsideration is
13 necessary to present an injustice. In this circumstance, the Defence
14 have not shown that either of those requirements. In particular, the
15 Defence have not shown any clear error in the Trial Chamber's underlying
16 decision finding that the unique nature of DGH-016's first-hand
17 observations, his position as SBWS minister of justice, and the potential
18 importance of his evidence require, in the interests of justice, that he
19 testify viva voce.
20 Now, the Trial Chamber has broad discretion in determining the
21 mode in which it will receive a witness's evidence as it alone must
22 decide what weight to give that evidence. And, in fact, the Defence's
23 motion for an adjournment supports the Trial Chamber's decision in that
24 the Defence argues in that motion that this witness's evidence is
25 important to its case.
1 Now, Defence counsel has argued that the Trial Chamber needed to
2 compare this witness's evidence with the evidence of witnesses in the
3 Prosecution's case. But that really is in opposite because each witness
4 must be looked at individually, and the Trial Chamber's determination
5 should be focussed on the evidence of this particular witness without
6 resort to looking at prior decisions with regard to completely unrelated
8 Now, the Prosecution notes that in its response to the motion for
9 Rule 92 ter that it pointed out a number of procedural irregularities
10 with regard to DGH-016's statement which merit the calling of this
11 witness viva voce. And in particular the witness was provided with
12 statements of Prosecution witnesses and asked to comment on them. And
13 the Prosecution maintains that this is a technique that is reserved
14 solely for cross-examination because it is intended to impeach witness
15 evidence. Now, the Trial Chamber did not make a ruling on that issue but
16 it did find that the better avenue was for this witness to address this
17 sort of evidence viva voce.
18 Now, with regard to the second consideration, there is no
19 injustice here because the Defence will be able to elicit the evidence of
20 the witness viva voce. Defence counsel raises the issue of lack of time,
21 and I think that Your Honours did receive the e-mail that Mr. Stringer
22 sent this morning on our submissions. And I just want to emphasise that
23 the crux of the matter that the Defence scheduled DGH-016 to testify with
24 only one and a half week's notice to the Trial Chamber and to the
25 Prosecution and without a decision from this Trial Chamber on the 92 ter
1 motion. The Defence should have inquired about the status of that
2 decision several weeks ago, or it should have asked the Trial Chamber to
3 give priority to that particular 92 ter motion, or it should have simply
4 waited to receive that decision before scheduling this witness.
5 These are the approaches that the Prosecution took in its case
6 in-chief and that is the reason why these problems didn't arise in the
7 Prosecution's case. Instead, in the matter at hand, it was Prosecution
8 who last week raised the issue of this outstanding decision on the 92 ter
9 motion, not the Defence. And it appears to the Prosecution that what the
10 Defence is doing is waiting until the last possible moment to schedule
11 and notify the Prosecution and the Trial Chamber of a witness, and in
12 doing so they are basically creating their own problems, such as this
14 Now, turning briefly to the motion for adjournment. And again,
15 Mr. Stringer raised our central points in his e-mail, but I would like to
16 add here that what has happened in this situation is by no means unique.
17 On February 3 of this year, in the Karadzic case, Mico Stanisic indicated
18 at the beginning of his testimony that he was invoking his rights under
19 Rule 90(E) with regard to his 92 ter statement. The Trial Chamber
20 therefore denied admission of that statement into evidence and instructed
21 Mr. Karadzic to begin immediately with his direct examination, which
22 Mr. Karadzic, in fact, did.
23 And in our response to the -- under 92 ter motion, we cited a
24 decision by the Trial Chamber in the Stanisic and Zupljanin case on 1
25 April 2010 in which the Trial Chamber denied admission of a 92 ter
1 statement of a witness on the same grounds as in this case, and that
2 statement at issue there was equally if not more complex and lengthy than
3 the one of DGH-016.
4 According to the denied 92 ter statement, the Defence met with
5 DGH-016 on at least nine occasions prior to arriving in The Hague to
6 prepare his evidence in this case, and we understand that the Defence
7 counsel has met for several days with DGH-016 to further prepare him for
8 his testimony, and therefore he should be amply prepared to provide
9 evidence that's contained within the statement. After all, it is his
10 statement. And in contrast, the Prosecution has only known that this
11 witness would be coming this week one and a half weeks ago and the
12 Prosecution is ready to go forward with cross-examination.
13 The Prosecution doesn't take a position with regard to the amount
14 of time the Defence needs for direct examination.
15 Thank you, Your Honours.
16 MR. ZIVANOVIC: Your Honour --
17 JUDGE DELVOIE: Mr. Zivanovic.
18 MR. ZIVANOVIC: -- I would just briefly reply.
19 First of all, in my view, we illustrated what kind of injustice
20 would be -- would be -- had the Defence if -- if the motion -- if our
21 request for reconsideration is denied. I'll not repeat it.
22 On the other hand, we submitted -- we brought this witness after
23 six weeks of -- as -- as the Trial Chamber ordered, six weeks after
24 submission of his Rule 92 ter statement, and we submitted a schedule, a
25 witness schedule with him, within the time set out by the Trial Chamber.
1 So it -- it is very short reply as to the Prosecution's response.
2 JUDGE DELVOIE: Thank you.
3 We will try to resolve the issue in a 20- or 30-minute break.
4 Court adjourned.
5 --- Break taken at 2.40 p.m.
6 --- On resuming at 3.18 p.m.
7 JUDGE DELVOIE: This is the Chamber's oral ruling.
8 The Chamber is seized of the Defence motion for adjournment of
9 trial to permit additional pre-testimonial interviews of witness DGH-016
10 or, in the alternative, certification of the Trial Chamber's decision of
11 26 September in relation to DGH-016 whereby the Defence requests a
12 one-week adjournment in order to have more time for "pre-testimonial
13 interviews" with the witness.
14 The Chamber notes that by e-mail from the Chamber, the Defence
15 was on notice since Wednesday evening, 24th of September, that its motion
16 to hear DGH-016 pursuant to Rule 92 ter would be denied and that the
17 evidence of DGH-016 should be presented viva voce.
18 The Defence thus effectively had four and a half days to have
19 additional interviews with the witness before the scheduled start of the
20 testimony. Moreover, the Chamber notes that in the process of producing
21 a 51-page-long 92 ter statement by the witness, the Defence should have
22 had enough time to discuss all of the relevant issues with the witness.
23 Nevertheless, the Chamber will allow for the requested
24 adjournment. A number of circumstances have led to the current situation
25 in which the Defence, even though it should not assume that the
1 Rule 92 ter motion will be automatically granted, has had to re-adjust
2 its preparation for the witness.
3 In addition, as already noted by the Chamber in its decision of
4 26 September, the evidence of this witness is of such nature that it
5 should be led viva voce, and by having an adjournment, the Chamber
6 expects that the efficiency of the examination of the witness will be
8 Accordingly, DGH-016's testimony shall commence on Tuesday,
9 7 October. The Chamber will sit from Tuesday through Friday of that
11 Furthermore, while the Defence has requested 12 hours for the
12 examination-in-chief of DGH-016, the Chamber finds that ten hours, double
13 the time requested in the Defence's 92 ter motion, is more than
14 sufficient to lead DGH-016's evidence viva voce.
15 Having granted the motion for adjournment as requested, the
16 alternative request for certification becomes moot.
17 Finally, the Chamber notes that only today in court during the
18 oral submissions, the Defence asked for the reconsideration of the
19 20 September decision. The Defence submitted that, firstly, the decision
20 impaired its preparations and, secondly, that the Chamber's
21 characterisation of DGH-016's evidence as unique and of importance to a
22 broad range of allegations is actually not that unique, especially
23 compared to witnesses GH-002 and GH-016.
24 The Chamber notes that the Chamber has the discretion to
25 reconsider the previous interlocutory decision in exceptional cases if a
1 clear error of reasoning has been demonstrated or if it is necessary to
2 do so to prevent an injustice. Particular circumstances justifying
3 reconsideration include new facts or new arguments.
4 The Chamber finds that the Defence has not demonstrated any new
5 facts or arguments and that it has therefore not met this test. The
6 Chamber notes that, in any event, the first argument by the Defence in
7 support of the submission for reconsideration has been remedied by the
8 granting of the request for adjournment.
9 If there's nothing else for the day, court is adjourned.
10 --- Whereupon the hearing adjourned at 3.25 p.m.,
11 to be reconvened on Tuesday, the 7th day of
12 October, 2014, at 9.00 a.m.