Tribunal Criminal Tribunal for the Former Yugoslavia

Page 9510

 1                           Thursday, 25 November 2010

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 2.18 p.m.

 5             JUDGE ORIE:  Good afternoon to everyone in and around this

 6     courtroom.  Mr. Registrar, would you please call the case.

 7             THE REGISTRAR:  Good afternoon, Your Honours.  Good afternoon

 8     everyone in and around the courtroom.  This is case number IT-03-69-T.

 9     The Prosecutor versus Jovica Stanisic and Franko Simatovic.  Thank you.

10             JUDGE ORIE:  Thank you, Mr. Registrar.

11             I would like to move into closed session.

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24                           [Open session]

25             THE REGISTRAR:  We are back in open session, Your Honours.

Page 9514

 1             JUDGE ORIE:  Thank you, Mr. Registrar.

 2             The procedural item I'd like to discuss is submissions in

 3     relation to a disclosure issue in relation to the report of Mr. Theunens.

 4     On Tuesday, Mr. Jordash, you indicated that there was a disclosure issue

 5     between you and the Prosecution and that the Stanisic Defence required

 6     full disclosure in order to make submissions on the admissibility of the

 7     Theunens report.  Yesterday you have forwarded to the Chamber staff an

 8     e-mail which you had sent to the Prosecution regarding this issue and

 9     Mr. Weber was supposed to come back to us on the issue regarding the

10     Prosecution's response.

11             Now, if I'm not mistaken, the same matter arises in the

12     submissions in relation to the exhibits related to the Theunens report.

13     The Stanisic Defence has objected against admission of a certain number,

14     approximately ten, of the documents, some of them for lack of relevance,

15     some of them for challenge of authenticity, but also some of them because

16     you are insufficiently -- at least that's raised in that context as well,

17     because you do not have full insight in, I would say, the history of

18     preparing the report and, therefore, also in relation to the exhibits

19     related to that.

20             Now, we can do two things.  Either we now ask Mr. -- perhaps

21     first to invite you to further explain and then ask Mr. Weber to come and

22     to respond to that.  Another way of dealing with the matter is that we

23     make that part of the submissions in relation to the attached exhibits

24     because apparently the same issue arises there, if I'm not mistaken.  At

25     least only I only very quickly read the submission but I think the issue

Page 9515

 1     was raised there as well and you also invited -- you already announced

 2     that the same matter would arise in relation to witness -- the expert

 3     witness who will testify, Mr. Nielsen.

 4             MR. JORDASH:  We were content to make our submissions on the

 5     admissibility of the exhibits without this information.  We can see

 6     conceivably how the disclosure of some of this information might impact

 7     upon those submissions, but we think it probably unlikely.  We are not

 8     content to make the submission in relation to the admissibility of the

 9     report without this information.

10             JUDGE ORIE:  So you would say rather try to resolve it now so

11     that you are able to make submissions on the admissibility of the report

12     as well, although it also affects to some extent the related exhibits.

13             MR. JORDASH:  It might, but unlikely, I would submit.

14             JUDGE ORIE:  Unlikely.  Then perhaps we take it separately.  Then

15     I would suggest -- yes, Mr. Weber.

16             MR. WEBER:  Your Honour, I just want -- if I could.  Is this

17     microphone on?

18             JUDGE ORIE:  My microphone was off is now on again and I'll

19     switch it off again and we'll see what your microphone does.

20             MR. WEBER:  Your Honour, it's going to be the Prosecution's

21     position that we would like to address the Rule 66(B) request that we

22     received from the Stanisic Defence yesterday in writing.  So whether it's

23     part of the exhibits or separate, we would be willing to do either.  We

24     understand that there's a temporal aspect of this with the upcoming

25     witness Mr. Nielsen, we would be able to do this in rather short course

Page 9516

 1     and would be requesting the close of business on Monday, we would like to

 2     be able to address it in writing.

 3             JUDGE ORIE:  Then, however, for the completeness of the record, I

 4     would first of all, I would like to invite Mr. Jordash to raise the issue

 5     in court because it has not been fully set out, is it?

 6             MR. JORDASH:  Your Honour, it hasn't, I would ask that we resolve

 7     the issue today.

 8             JUDGE ORIE:  Okay.  We'll first hear you and then we'll only

 9     after that we'll decide on Mr. Weber's request to have time until Monday

10     to respond in writing.  And if you would cover that aspect in your

11     submissions now as well, it would be easier for the Chamber to make the

12     determination whether or not to deny the request of Mr. Weber for more

13     time.

14             MR. JORDASH:  Certainly.  I notice that Mr. Weber indicated that

15     the Rule 66(B) request had been made yesterday, but -- and that

16     technically is correct, what isn't correct is that we'd been making this

17     request from the day Mr. Theunens gave evidence, suggesting he couldn't

18     remember what his contacts with the Prosecution had been in relation to

19     this case.

20             At that point we requested from the Prosecution the details of

21     Mr. Theunens' work with the Stanisic case.  In particular, we focused at

22     that point on, one, the table of contents that Mr. Theunens sent to the

23     Prosecutor, Ms. Brehmeier, within two to three days of starting to work

24     on the report.  We also included in that request, the relevant RFAs, and

25     in effect any evidence which would cast light on this subject.  And we've

Page 9517

 1     continued to ask for that and the e-mail we sent, which Your Honours now

 2     have a copy of, is simply a resetting out of those requests.

 3             And that's why we would ask Your Honours to deal with this today

 4     orally.  In our submission it's taken too long already on an issue which

 5     we submit is really straightforward.  And we say it's straightforward for

 6     this reason:  One, that this evidence clearly goes to the issue of

 7     admissibility.  And, two, even if it didn't go to admissibility, it would

 8     go to the weight of the report.  Forgive me, because I don't have the

 9     authorities on hand to show you, but I can refer Your Honours to the

10     authorities which establish the point I've just made.

11             Your Honours will be familiar with the line of authority which I

12     think began with Prosecutor versus Galic, which held decision -- sorry,

13     which entitled "Decision concerning the expert witness Ewa Tabeau and

14     Richard Phillips, the 3rd of July, 2002," in which it was held that:

15             "The mere fact that the expert witness is employed by or paid by

16     a party or a party-related agency, does not disqualify him or her to be

17     called and testify as an expert witness.  And that concerns about a

18     potential witness's independence and impartiality are matters of weight,

19     not admissibility and can be properly addressed during

20     cross-examination."

21             Now, our first point is this:  That the information we've

22     requested at the very least goes to that weight.  And that's why we

23     submit, we ought to have it disclosed.  It goes to whether Mr. Theunens

24     has had contact with this case such that it impacts upon the independence

25     and reliability of his opinion.

Page 9518

 1             And in our submission that's clear.  If Mr. Theunens worked hand

 2     in glove with the Prosecution preparing aspects of this case, and then

 3     wrote a report supporting the very aspects of the case he had been

 4     working on, in our submission that would clearly go to the weight of --

 5     that Your Honours could place on his report.

 6             There is another line of authority, a less endorsed line of

 7     authority but one nevertheless which we might rely upon if we obtain

 8     certain information from the Prosecution, and that arises from two cases,

 9     the Prosecutor versus Milutinovic, and Prosecutor versus Djordjevic.  And

10     the relevant decisions are, the Milutinovic decision was "The decision on

11     the Prosecution request for certification of interlocutory appeal of

12     decision on admission of witness Philip Coo's expert report, 30th of

13     August, 2006".  And the Djordjevic decision was the Djordjevic's -- I

14     think I might have -- just give me a moment.

15             I'm being whispered 13th of August, but the note I've got is

16     reply -- "Djordjevic's reply to the Prosecution's response to Defence

17     notice pursuant to the Rule 94 bis, 19th of January, 2009".  If Your

18     Honours give me a short moment, I'll get you the decision.

19             But the -- both cases concern the exclusion of Philip Coo's

20     expert opinion or part of it in those relevant cases on the basis that,

21     and I quote from the Milutinovic decision, that:

22             "His involvement in the investigation and preparation of the

23     Prosecution case was such that it could not regard his opinion as bearing

24     the appearance of impartiality."

25             And following on from that, the Djordjevic case, the extent of

Page 9519

 1     his involvement in the preparation of the Prosecution case was such that

 2     the Chamber was not able to be confident of the impartiality of his

 3     opinions.  In our submission, depending upon the involvement that

 4     Mr. Theunens had with this case, Your Honours might choose to follow that

 5     line of authority and rule that report inadmissible.

 6             In our submission we are not asking for anything exceptional

 7     here.  We are asking for material which may fall within Rule 66(B), but

 8     may well fall within Rule 68, one, undermining the credibility of

 9     Mr. Theunens report, two, undermining its admissibility.  Those are our

10     submissions.  I apologise for not having the decisions, I was caught on

11     the hop on this argument today.

12             JUDGE ORIE:  Thank you, Mr. Jordash.  Mr. Weber, Mr. Jordash

13     tells us that it's not a new matter which needs attention only since

14     yesterday, but it's an on-going matter and I think the whole disclosure

15     issue was already brought to our attention two days ago, so that's -- and

16     then I think there was a kind of an offer that you would appear in court

17     and respond to what Mr. Jordash wanted to say, so are you ready to do so

18     and if not, would you please explain why you are not.

19             MR. WEBER:  First, the Prosecution would address just the

20     background in terms of providing some information to the Chamber and the

21     history of this matter.  And then we would stand on our request to

22     address the remaining matters in writing.  As background information on

23     this matter the Prosecution would provide the following:  The Stanisic

24     Defence requested a previous copy of the table of contents referenced by

25     Mr. Theunens during his cross-examination.  The Prosecution attempted to

Page 9520

 1     locate any earlier copies of the table of contents and located one.

 2             JUDGE ORIE:  Mr. Weber, we are not under time restraints this

 3     afternoon, so if you would just use the opportunity to accommodate

 4     interpreters and transcribers, please proceed.

 5             MR. WEBER:  Thank you, Your Honour.  As I just said we did locate

 6     one and this was disclosed to the Defence during the course of the

 7     examination of Mr. Theunens.  As a courtesy this was provided and the

 8     Stanisic Defence did not seek to confirm with the witness, who was on the

 9     stand and available for cross-examination, whether this earlier version

10     that was produced was in fact the one that was being discussed during his

11     examination.

12             The Prosecution notes that Mr. Theunens described the draft table

13     of contents on 27 October 2010 at transcript page 8157.  And he stated

14     that:

15             "All the the headings as they are in the final table of contents

16     were all there.  I'm pretty sure they were."

17             The next matter that was then raised after the table of contents

18     issue was the Stanisic Defence requested copies of RFAs that Mr. Theunens

19     issued with respect to this case.  Again, as a courtesy, the Prosecution

20     searched its request unit database and located one RFA that was drafted

21     by Mr. Theunens with respect to the the Stanisic and Simatovic case which

22     was issued to the Bosnian government after the completion of his report.

23             Subsequent to the testimony of Mr. Theunens, the Stanisic Defence

24     has now greatly broadened its request.  The Prosecution's position on

25     this would be, this is tantamount now to a fishing expedition with no

Page 9521

 1     reasonable basis developed upon cross-examination.

 2             Yesterday, we received during the course of this discussion that

 3     occurred post Mr. Theunens testimony, we did ask the Stanisic Defence to

 4     particularize any further requests in a formal Rule 66(B) request.  We

 5     now have received this yesterday.  Having reviewed this, this matter does

 6     implicate matters that are significant and serious in the sense that they

 7     may affect individual's privacy.  At this time we have no reasonable

 8     basis to believe there's any undue influence or any improper malfeasance

 9     that has occurred and we do not -- we are going to oppose any further

10     inquiry into this request and we'd like to do so in writing, a request

11     that we received yesterday.

12             JUDGE ORIE:  Before I give an opportunity, it's not entirely

13     clear to me what privacy of an individual is at stake here.  Now, of

14     course there's always a problem that if you start explaining that it

15     might affect the privacy, but if you therefore prefer to go into private

16     session or closed session, we would --

17             MR. WEBER:  If it's okay with the Chamber, I can speak about in

18     general terms.  We are talking about other people's electronic mail and

19     accounts.

20             JUDGE ORIE:  Yes, mail and accounts, are you concerned about the

21     context of the e-mail exchanges or are you concerned about e-mail

22     addresses to become known or ...

23             MR. WEBER:  Some of the individuals that are being requested are

24     former employees and gaining access to their individual e-mail accounts

25     does implicate privacy issues.

Page 9522

 1             JUDGE ORIE:  Do you mean e-mail exchanges with former employees

 2     on their private e-mail?

 3             MR. WEBER:  Yes.

 4             JUDGE ORIE:  And just for my understanding, is it then a matter

 5     of private e-mail addresses or mixing up private matters with

 6     business-related exchange of information?

 7             MR. WEBER:  Thank you for clarifying that.  No, I'm talking about

 8     Lotus Notes, business related.  Individual work related accounts.

 9             JUDGE ORIE:  Yes, but now your concern is that these private

10     e-mail addresses would become known.

11             MR. WEBER:  No, we are talking about conducting a search of a

12     closed former employee's own individual Lotus Notes accounts for

13     information without any reasonable basis to do so, no belief as to what

14     we are looking for or no belief that there is any malfeasance that has

15     occurred that we are looking for anything.  Under what grounds are we

16     searching through, whether it be Mr. Groome's, Mr. Jordash's,

17     Mr. Bakrac's, UN related accounts, what are we doing that on that basis?

18     So we would like to address that in writing and that was the basis of the

19     reason that we'd like to have written submissions on it.

20             And just to clarify one other thing --

21             JUDGE ORIE:  Before you start clarifying other things, I just

22     consult with my colleagues where whether they understood exactly what it

23     was you said in the last ten lines.

24                           [Trial Chamber confers]

25             JUDGE ORIE:  The Chamber is at this moment is unanimous in not

Page 9523

 1     really understanding what you raised starting on line 15 and going until

 2     24.  I earlier offered to you to go into private or closed session if

 3     there would be any need if you would further want to explain.

 4                           [Trial Chamber and Registrar confer]

 5             MR. WEBER:  Your Honour, I can further respond.

 6             JUDGE ORIE:  Could I -- this Chamber is supported by staff

 7     members and sometimes we have to acknowledge that staff members are

 8     better able to understand the crucial issues than the Chamber is at this

 9     moment.  Let me try to see whether, is your concern that if you want to

10     research the involvement or, well, let's say, the activities of

11     Mr. Theunens in the Stanisic Simatovic case, that in order to give

12     reliable and complete answers, that you would have to include in your

13     research, e-mail accounts of former employees who meanwhile have left the

14     Tribunal where you are not certain whether these UN e-mail accounts may

15     have been used for personal purposes as well, and that you have some

16     hesitation as to violate the privacy of those persons, although they may

17     have used their business e-mail accounts for private purposes which may

18     happen.  I couldn't tell you that I've never used my UN e-mail account

19     for private exchanges as well.  Is that your concern?

20             MR. WEBER:  Yes, and first and foremost obviously we'd have to,

21     one, locate Mr. Theunens' old account information, we'd have to

22     reactivate it, because we don't have any reasonable grounds to suspect

23     any malfeasance, it would require us to get Mr. Theunens back here to

24     look at his own account and go through that information.  Now, that would

25     just be the primary individual involved here, for Mr. Theunens to locate

Page 9524

 1     his own information.  So that -- that's what this is asking us to do.

 2     There is no support for it at this time.  We did honour some very initial

 3     reasonable requests that we weren't under an obligation to provide but we

 4     did.  Now we are talking about going through a fishing expedition into

 5     other people's accounts.

 6             Now, just so the Chamber is aware, we -- since this issue has

 7     been raise the we are approaching it differently for Mr.  Nielsen

 8     forthcoming.  We are going to try to take reasonable steps to reactivate

 9     his account while he is here.  So this is the difficulty in terms of the

10     practicality now in terms of raising this issue now or during even the

11     course of the testimony of the witness.  Now we can try to activate it

12     for Mr. Nielsen before he arrives.  If, during the course of the

13     cross-examination of Mr. Nielsen, there's any indication, any prima facie

14     showing of any type of undue influence, we can try to have the ability of

15     Mr.  Nielsen to go and check his own account and locate material.  Now,

16     that's how we are approaching it with respect to Mr. Nielsen in the

17     upcoming, but now with respect to the reasonableness of the present

18     request which is dating back to Mr. Theunens' testimony, our position is

19     that we have made good faith attempts, we've applied with -- we've gone

20     beyond and attempted to comply with requests that were made during the

21     course of the examination, the Stanisic Defence was provided with

22     materials even by the Prosecution that they didn't even seek it to

23     confirm with Mr. Theunens at the time.  So now after the fact we are

24     talking about fishing through other former employees' accounts, that is a

25     serious matter, without any indication of really what we are looking for

Page 9525

 1     and what we are supposed to find.

 2             So we would like to oppose that and we would like to oppose that

 3     in writing.  That's why I raise the issue.  The one matter with that we

 4     want to clarify is just that we would dispute Mr. Jordash's comments on

 5     page 7, line 24 to page 8, line 1 of today's transcript, unless he can

 6     show us the portion of Mr. Theunens' testimony where he said that the

 7     table of contents was provided within two to three days of him receiving

 8     an assignment.  Thank you, Your Honours.

 9             JUDGE ORIE:  Mr. Jordash, it appears to me that we have two

10     problems of a different nature.  The first one is whether or not the

11     Prosecution is willing to research the existence of e-mail exchanges

12     between Mr. Theunens and the Prosecutor's Office in relation to his

13     involvement in the Stanisic Simatovic case.  And the second is the

14     practicalities of that, how much time would it take, would you need to

15     reactivate e-mail accounts, would you need to seek consent of those who

16     are, I would say, the owners of that account.  Would you please -- first

17     of all, if you share my view that there are two different aspects

18     involved before giving you an opportunity to respond, I would suggest

19     that we first ask Mr. Weber whether apart from all the practicalities and

20     apart from whether there would be any need to redact or to shift, and I'm

21     not saying that this is in anticipation of granting your request, or at

22     least considering your request to be reasonable and to be such that the

23     Prosecution should follow it, but is there any -- from the view of the

24     principle, is there any problem in providing Mr. Jordash, if we overcome

25     all the practicalities, if that's all done, with the content of the

Page 9526

 1     communication between Mr. Theunens and other members of the Office of the

 2     Prosecution?

 3             MR. WEBER:  If I could just please have a moment.

 4             JUDGE ORIE:  Please do so.

 5                           [Prosecution counsel confer]

 6             MR. WEBER:  Certainly not with respect to his report, but for

 7     everything else, yes.  I mean information about E-passes, other things of

 8     that nature, we would have a rather substantial objection to that, but

 9     with respect to content as it individually relates to his report, which I

10     believe is the gist of the Stanisic request, no.

11             JUDGE ORIE:  That is information about your communications with

12     Mr. Theunens after you asked him to write a report, but I think, as a

13     matter of fact, Mr. Jordash would also like to know whether prior to that

14     moment Mr. Theunens has developed any activity focused on the Stanisic

15     Simatovic case.

16             MR. WEBER:  Your Honour, I guess this is now where we are

17     maybe -- it's a blurred line in terms of what they are looking for.  We

18     are aware based on Mr. Theunens' testimony and what he has told us and

19     what he told me during proofing that he had exchanges of table of

20     contents and then also the actual exchange of a draft report with an

21     acting SDA.  So that is our knowledge of the awareness of the e-mail

22     exchanges.

23             So to the extent they are seeking those exchanges, that's what

24     I'm talking about.

25             Now, with respect to what is it that Mr. Jordash believes is --

Page 9527

 1     our position would be that the Defence should be required to make a prima

 2     facie showing that there's some indication of undue influence or any

 3     indication here of any type of improper activity, before we start going

 4     searching through someone's employment and their e-mail accounts and

 5     having them fly back from far away to do this and you know that's our

 6     position.  There's going to be a lot of other information in there in

 7     terms of E-pass, again so forth.

 8             JUDGE ORIE:  The problem there may be that it is not always easy

 9     to strike a fair balance between what should be disclosed where the party

10     seeking the disclosure has concerns which are based not primarily,

11     perhaps, on specific knowledge on certain communications or certain

12     activities, but where the concerns arise from a institutional

13     environment, that is that -- Mr. Jordash would love to know if there

14     was -- if there were any minutes of a meeting in which Mr. Theunens would

15     have said, We should spend another 100 hours on it because I feel that

16     they are guilty, for example.  Not because of course this is any

17     suggestion that any such thing would have ever been said, but if these

18     kind of things would have existed, then Mr. Jordash is not at this moment

19     in a position to know that and what he is apparently seeking is a review

20     of the internal communications which may shed additional light on a role,

21     if any, of Mr. Theunens focused on, could I say more or less policy

22     matters in the investigation of the Stanisic Simatovic case.

23             Mr. Jordash, do I understand you well, that you are not

24     interested to know exactly what on a day-to-day basis what Mr. Theunens

25     reviewed or did not review either in other cases or not specifically

Page 9528

 1     focusing on the Stanisic Simatovic case or even when focusing on the

 2     Stanisic Simatovic case, because to open the daily activities of

 3     Mr. Theunens might go pretty far.

 4             MR. JORDASH:  Of course we would expect nothing more than the

 5     Prosecution would draw a reasonable line and look at what Mr. Theunens

 6     did in relation to the Stanisic case and tell us that without going into

 7     either private matters or extending the search to such an extent that it

 8     becomes unmanageable.  What we want is what did he do and the nature and

 9     degree of his involvement in the Stanisic case.

10             JUDGE ORIE:  Yes, Mr. Groome.

11             MR. GROOME:  Your Honour, I rise to inform the Chamber of an

12     alternative that I had offered to Mr. Jordash which I still believe as I

13     listen to this debate, I believe gets to the heart of the matter and is a

14     far more sensible approach.  Mr. Theunens was here for, I think, 9 or 10

15     years, so we are talking about a incredible amount of e-mails.  I had

16     offered to Mr. Jordash since I retook the senior Prosecutor position on

17     the case, there's been very little contact with Mr. Theunens because of

18     my approach to experts.  But I did inform Mr. Jordash that this case has

19     such parity with the Milosevic case that really isn't that what he is

20     interested in, what involvement did Mr. Theunens have with witnesses and

21     with aspects of that case.  And to that end, I offered to do some

22     research into what witnesses did Mr. Theunens participate in the

23     interviews and the taking of the statements, what witnesses did

24     Mr. Theunens participate in the preparation for giving their evidence,

25     witnesses that are in common between this case and the Milosevic case and

Page 9529

 1     I offered to work with him to develop a stipulation that could be put

 2     before the court.

 3             JUDGE ORIE:  Mr. Groome, the same for you, now we've got time.

 4             MR. GROOME:  I apologise, Your Honour.

 5             JUDGE ORIE:  Please proceed.

 6             MR. GROOME:  And I've' offered to work with Mr. Jordash to

 7     develop a stipulation that accurately reflects the involvement that

 8     Mr. Theunens has had in the work of the Prosecution's related to this

 9     case so that the Chamber can fairly assess whether he is so intimately

10     involved with them that it should use cautious in evaluating his report.

11     I'm still prepared to do that.  To me it me it seems that it would be far

12     more helpful to the Chamber to know which of the witnesses in this

13     particular case, Mr. Theunens was involved in the taking of their initial

14     statement, rather than knowing the minutia of his daily work activities,

15     and again to point out that for us to ferret out and identify those

16     e-mails which are related to this case, would require us to look at all

17     e-mails, and I don't know because I haven't done it, but we would be

18     required to look at requests Mr. Theunens made to Ms. Brehmeier-Metz for

19     annual leave or for sick leave or emergency leave, and I can just imagine

20     that it has security -- privacy implications and that's why we requested

21     an opportunity to address them more fully in writing.

22             JUDGE ORIE:  Mr. Jordash.

23             MR. JORDASH:  Your Honour, in our submission, the Prosecution

24     ought not to be able to rely upon rely on the impracticality which they

25     are seeking to rely upon.  For this reason:  On the 1st of November, 2010

Page 9530

 1     we sent Mr. Weber an e-mail.  Your Honours will remember that

 2     Mr. Theunens gave evidence from the 26th of October until the 3rd of

 3     November, so this was where Mr. Theunens was in the witness box.  And it

 4     states:

 5             "Please can the OTP disclose, one, all the RFAs sent to the

 6     National Council for Co-Operation by Mr. Theunens or on his behalf during

 7     the preparation of his expert report, and two, the full details of

 8     Mr. Theunens work on the Stanisic case, including inter alia, his role

 9     advising on the indictment and Prosecution pre-trial brief."

10             We've repeated in various forms that request until today and now

11     the Prosecution stand up and say, well, it's a bit impractical now, you

12     ask us to go into Mr. Theunens private e-mails.  We didn't ask them to do

13     that.  We asked them to go into Mr. Theunens e-mails when Mr. Theunens

14     was at the seat of the court, when Mr. Theunens could have done that very

15     thing.

16             In our submission, it's not a choice between a stipulation as

17     outlined by Mr. Groome where we, as I understand the offer, learn only

18     about what witnesses Mr. Theunens worked with versus going into the

19     minutiae of his work -- his daily work as Mr. Groome has described it.

20     The choice is more simple.  It's a reasonable search of whatever medium

21     to understand and disclose what Mr. Theunens did in relation to this

22     cause, including what witnesses he had contact with, including what

23     exchange of e-mails he had with members of this Prosecution team in

24     relation to this case, including RFAs, and so on.  Until we have a proper

25     picture of what involvement he had with this case.

Page 9531

 1             And the Prosecution have known about that since Mr. Theunens

 2     purported not to remember anything useful concerning that involvement.

 3     And in our submission, it's not a case of a threshold of undue influence.

 4     The threshold is what evidence is there that goes to Mr. Theunens' report

 5     and its reliability.  We are not alleging malfeasance or a lack of bona

 6     fides, we are suggesting that, given Mr. Theunens recalled working on the

 7     Stanisic case, that that evidence may reflect on the reliability of his

 8     report and may reflect on its admissibility.

 9             If I can just address one last point, my learned friend Mr. Weber

10     asked for us to indicate in the transcript where it was that I think

11     Mr. Theunens dealt with the table of contents and where it was that

12     Mr. Theunens had said he'd sent a table of contents within two to three

13     days.  Well, he didn't say within two to three days.  What Mr. Theunens

14     said at page 79 --

15             JUDGE ORIE:  One second, page 79 of?

16             MR. JORDASH:  Sorry, page 8052.  26th of October, Your Honour.

17             JUDGE ORIE:  26th of October.  Let's -- one second, I'll find it.

18     26 of October.  Page?

19             MR. JORDASH:  Page 8052.

20             JUDGE ORIE:  8052.

21             MR. JORDASH:  Line 18.

22             JUDGE ORIE:  Yes.

23             MR. JORDASH:  It's there that Mr. Theunens is talking about the

24     direction phase of the intelligence cycle he described to the Court.

25             JUDGE ORIE:  Let me just read it for a second.

Page 9532

 1             "In response I prepared a draft table of contents which was

 2     basically -- which was mainly based on reports I had done for other cases

 3     involving senior Serb suspects.  I tried to expand it and also to focus

 4     it on the specific aspects of this case."

 5             And then he says that he submitted a draft to Ms. Brehmeier and

 6     that she agreed he used that then as the direction for his further

 7     research.  That's what the transcript tells us.

 8             MR. JORDASH:  Your Honour, yes.  What we were sent by the

 9     Prosecution was a table of contents with the draft report which it turned

10     out to be the final report, a draft and report table of contents sent I

11     think four days before the report was finalised, so some time after this

12     point in time that Mr. Theunens was describing.  And the Prosecution had

13     that request when Mr. Theunens was there, they could have asked

14     Mr. Theunens to check his e-mails while he was still at the seat of the

15     court and disclose that table of contents.

16             JUDGE ORIE:  Let me now see.  I do understand that Mr. Theunens

17     testified, and forgive me, my recollection is not such that I would be

18     able to expand beyond what you've drawn out what you do now.  He says, "I

19     submitted a draft table, she agreed and I used that," which suggests that

20     there was one draft which was agreed and not changed since then.

21             MR. JORDASH:  Yes.  Yes, I think that's right.

22             JUDGE ORIE:  So therefore, I have no recollection that you

23     specifically cross-examined Mr. Theunens on whether the draft underwent

24     any minor changes or whether she really agreed or only after discussion

25     agreed or am I -- but forgive me, I --

Page 9533

 1             MR. JORDASH:  Your Honour is right because Mr. Theunens' position

 2     was he -- I'm just reminded that I did cross Mr. Theunens on --

 3     cross-examined Mr. Theunens on these issues.  I cannot recall at this

 4     moment how far --

 5             JUDGE ORIE:  On these issues is not exactly, but if you would

 6     give us later the exact page references, that might assist.

 7             MR. JORDASH:  Well, in relation to this particular issue, the

 8     table of contents, then I did cross-examine -- I recall cross-examining

 9     him on this, and I recall him saying that he didn't -- the issue as I saw

10     it or we saw it was this:  That if Mr. Theunens submitted a draft table

11     of contents within days or weeks of being instructed to prepare a report

12     and had not actually conducted any research and yet that table of

13     contents was -- were effectively a summary, conclusions reached before

14     any research, that would be of significance when Your Honours sat down to

15     consider the weight or the admissibility of this report, to form

16     conclusions without research.

17             And so we immediately requested of the Prosecution that they

18     disclose that table of contents since Mr. Theunens, as I recall, could

19     not remember the precise table of contents and whether that had altered

20     during the course of his research.  And as I said before, what we were

21     served with was a table of contents which accompanied the final draft.

22     So the issue remains unprogressed because the Prosecution failed to ask

23     Mr. Theunens or Ms. Brehmeier, the Prosecutor who the table of contents

24     was sent to, to provide that table of contents.  And in our submission,

25     the Prosecution cannot hide, and I mean that without a pejorative

Page 9534

 1     context, but they cannot hide behind practicalities saying, They are

 2     ex-employees, what can we do?  Well, the options are there.  Even if the

 3     options are not there, the difficulties ought not to impact on what the

 4     accused are entitled to know and what the Court is entitled to know to be

 5     ail to assess, well, for the accused to be able to challenge credibility

 6     and reliability and for the Court to be able to assess it.

 7     Impracticalities, we have sympathy with, but that's not the point, in our

 8     submission.

 9             JUDGE ORIE:  If I look at your cross-examination on the matter,

10     I'm looking at page 8155 and following.  The focus was very much on as

11     far as what I remember and what I see here, but I've not had an

12     opportunity to read through all of the ten pages of transcript which

13     apparently are dealing with the table of contents, then I see that it's

14     mainly on where did he got his ideas from to make it as it was rather

15     than whether he changed anything while working on the report and after

16     having received the agreement.  Because he says here in 8155:

17             "So I submitted a draft table of contents and that was approved,

18     and that's when I continued to work on the report."

19             And then you say, "Can we go to Exhibit P1575 and to page 2 of

20     the table of contents.  It's 16 on e-court.  Now, are you able at this

21     stage to identify which were the headings that you first set down and

22     drafted before beginning the drafting of the report?"

23             It may well be that if we read through all these ten pages in

24     detail, that you have put the question to Mr. Theunens whether the draft

25     table he submitted was then agreed by Ms. Brehmeier, whether he changed

Page 9535

 1     it after that.

 2             MR. JORDASH:  If Your Honour reads down, Your Honour can see that

 3     the issue I think at 8156.

 4             JUDGE ORIE:  8156, line 20.

 5             MR. JORDASH:  Line 19 and 20, I asked the question concerning

 6     whether a particular heading was present in the contents table and I

 7     remember I was focusing on the heading I think which said something like

 8     Serbian MUP relations with paramilitaries or something incriminatory.

 9             JUDGE ORIE:  Yes, I just continue to read.  One second.  He

10     finally says after he said there's no reference to Ms. Brehmeier here

11     then later on he says when you asked him, he says:

12             "I'm not sure whether all the headings as they are in the final

13     table of contents were all there.  I'm pretty sure they were."

14             Then your question was:

15             "Because you said yesterday Ms. Brehmeier-Metz hadn't made any

16     substantive alterations."

17             And then the answer was, "Indeed".

18             MR. JORDASH:  Mr. Theunens at 8158 said when asked concerning the

19     draft:

20             "It must be in the OTP, I mean, when I left I didn't erase my

21     hard disk or something or the networks, so the material is there."

22             JUDGE ORIE:  That's another matter, but you are inquiring as to

23     whether you -- whether Mr. Theunens could assist you in finding the

24     material you thought you would need to verify or the at he least to form

25     an opinion about reliability of his evidence in this respect.

Page 9536

 1             MR. JORDASH:  Yes.  Your Honour may I just add this:  In our

 2     submission, the issue isn't, with respect, to be narrowed to whether we

 3     cross-examined on a particular issue.  The issue is for Your Honours to,

 4     in our submission, rule as to whether this is a legitimate inquiry

 5     pursuant to Rule 66(B) or Rule 68.

 6             JUDGE ORIE:  Yes.

 7             MR. JORDASH:  And whether we cross-examined on it or not, the

 8     Prosecution's obligations don't depend upon that.

 9             JUDGE ORIE:  I think Mr. Weber more or less raised the issue why

10     matters had not been dealt with when Mr. Theunens was still here, that's

11     the reason why I -- let's try to be practical.

12             RFAs sent at the request or influenced by Mr. Theunens seems not

13     to be a problem to provide that, to identify them and to provide that.

14             MR. WEBER:  Your Honour, that's been identified.  Mr. Theunens

15     issued one RFA with respect to the Stanisic Simatovic team to the Bosnian

16     government after the completion of the report.  So we submit that's not

17     even relevant with respect to the inquiry, but if the Defence would

18     really like us to provide it, we can provide it.

19             JUDGE ORIE:  Okay.  Second, involvement of Mr. Theunens in

20     interviewing and proofing witnesses.  No problem from what I understand.

21             MR. JORDASH:  Your Honour.

22             JUDGE ORIE:  Yes.

23             MR. JORDASH:  May I just go back to the RFAs.

24             JUDGE ORIE:  Yes.

25             MR. JORDASH:  There is -- I mean, we don't want to be

Page 9537

 1     unreasonable, but there is an overlap between this case and the Milosevic

 2     case --

 3             JUDGE ORIE:  I'll come to that in a second.  I'm just trying to

 4     figure out where the problems still are and where they may not exist

 5     anymore.

 6             MR. JORDASH:  My point was going to be made in relation to RFAs,

 7     if they're irrelevant --

 8             JUDGE ORIE:  I see that point and why there is as a matter of

 9     fact.  Then communications, e-mail communications between the Office of

10     the Prosecutor and Mr. Theunens once he had received a request for

11     drafting a report.  Any problem there?

12             MR. WEBER:  There is a problem.  We would still like to address

13     this in writing and how do we identify it.  There's still the same

14     concerns that both myself and Mr. Groome have made on the record today.

15     We would still like to address that in writing.

16             JUDGE ORIE:  So there that issue still exists.  Now, it appears

17     to me that one of the first things Mr. Jordash want to know is whether

18     any specific assignments were given to Mr. Theunens in relation to

19     Stanisic Simatovic, so apart from how he then worked on from that.  Is

20     there any way, not perhaps by checking e-mails, because I take it that a

21     specific assignment on a case may be confirmed in an e-mail, but I take

22     it that the team leader then at a certain moment says, This is what we

23     need, we'll ask Mr. Theunens.

24             MR. WEBER:  Of course we can check our own team records, but

25     unfortunately what's going on on a lot of this dialogue is we are

Page 9538

 1     communicating back to Defence what we find, which is not much or very

 2     little information and that's not sufficient; they say there's more.  So

 3     we can check that but there's still then goes back to the issue of in

 4     order to fully confirm as Your Honours have noted already, it requires

 5     probably even further checking.

 6             JUDGE ORIE:  Yes, I can imagine that -- may I take it there's a

 7     structure of assigning tasks to your own team members or those assisting

 8     the teams.  I do understand Mr. Theunens was not specifically a team

 9     member in one case or another, but that he was in a kind of a department

10     which would give support to teams, is that correctly understood,

11     Mr. Groome.

12             MR. GROOME:  Your Honour, yes.

13             JUDGE ORIE:  Analysis department or ...

14             MR. GROOME:  I would say it's not a uniform and there's no work

15     log kept by the OTP.  The only task for this case has been the report.

16     Now, there have been other tasks related to the Milosevic case which may

17     be related.  Those -- all of the people, pretty much who he worked for

18     have left the Tribunal.  I'm not sure how we identify that.  May I offer

19     this as a possible suggestion, if Mr. Theunens would agree to a phone

20     call with Mr. Jordash to help identify that material.  It's not a matter

21     of us producing relevant material.  We are happy to do that.  It's the

22     process that is involved in doing that.  I'm sure Mr. Theunens would be

23     willing to do that if Mr. Jordash thinks that that would be helpful and

24     he could then, after a result of that conversation, make a more specific

25     request about the types of things he is looking for, we'll be happy to

Page 9539

 1     see if we can go dig up that material for him.

 2             MR. JORDASH:  The problem is that we asked the questions of

 3     Mr. Theunens when I was in the witness box that we thought would help us

 4     to identify either what he had done on the case or give us pointers as

 5     to --

 6             JUDGE ORIE:  Let's cut that short.  You say it could have been

 7     done or he could have provided information or he doesn't have it.

 8             MR. JORDASH:  Or he doesn't remember.

 9             JUDGE ORIE:  If he doesn't have it or doesn't remember, then of

10     course we are back to zero in this respect.  However, if he would be

11     asked did you receive specific assignments in the Milosevic case, for

12     example, rather than to go to all the team leaders -- I'm trying to

13     resolve this matter in a fair but also in a very practical way.

14             Let me -- one second, please.

15                           [Trial Chamber confers]

16             JUDGE ORIE:  Where I earlier need the assistance of staff members

17     for proper understanding, I now certainly need the assistance, not I

18     need, but we have to reach conclusions as a Chamber, and therefore we'd

19     like to take a little bit of time for that.

20             We were at a point where we have to take a break anyhow, we don't

21     want to spend the whole of the afternoon dealing with this matter, but we

22     would like to think about what has been said until now and to see how to

23     proceed, that is whether we can resolve the matter today as a whole or in

24     part, and second, whether we would come to any encouragement to the

25     parties to see what practical matters they could work on in the days to

Page 9540

 1     come.

 2             We'll take the break and may I also urge the parties and myself

 3     as well, not to make it a self-fulfilling prophecy that if you've got

 4     more time that you'll use that time.  We will resume at 4.00.

 5                           --- Recess taken at 3.29 p.m.

 6                           --- On resuming at 4.10 p.m.

 7             JUDGE ORIE:  The Chamber has considered the submissions by the

 8     parties and has come to the following conclusions:  First of all, the

 9     Defence, and I'm primarily addressing the Stanisic Defence, but the same

10     may be true for the Simatovic Defence, is encouraged to accept what is

11     offered and the Chamber will not consider such an acceptance of what is

12     offered as a final position.  That means, you reserve your position even

13     while adopting what is offered to you when you consider it's not what you

14     are entitled to, you can still further pursue the matter.

15             Accepting what is offered, the Chamber noticed that tables of

16     contents were mentioned, possibly the Prosecution, I don't know whether

17     it's included or not, would provide further information about assignments

18     to Mr. Theunens or relevant policy information such as that they try to

19     find other experts who are not willing to accept the assignment, or

20     whatever, or assignments which are related to the subject matter of the

21     report, so as to -- to provide information as complete as possible, and

22     of course the encouragement to accept what is offered should be

23     understood by the Prosecution as being encouraged to offer as much as

24     they can provide.

25             But it would also include accepting offers for making a

Page 9541

 1     conference call, perhaps, with Mr. Theunens or if need be with

 2     Ms. Brehmeier to elicit the relevant information the Defence is seeking,

 3     so that would not necessarily be limited to a call with Mr. Theunens but

 4     could include also other former employees of the Office of the

 5     Prosecution.  Of course, the parties are encouraged to further discuss

 6     what is possible and what would meet the needs of the Defence.

 7             The Chamber does not expect, in the factual sense of that word,

 8     not in the normative sense, does not yet accept that this will resolve

 9     the whole of the problem.  Any remaining issue -- for any remaining

10     issue, the Stanisic Defence is invited to make a written motion seeking

11     further disclosure orders in this respect.

12             The Chamber also would like to give guidance to the Stanisic

13     Defence to be, in such a motion, as specific as possible in what you

14     want.  The Chamber adds to that on the basis of the submissions we've

15     heard until now, that the Chamber is not inclined to order e-mail

16     searches so far-reaching as the Stanisic Defence has been seeking.  The

17     Chamber also gives this guidance that in seeking further disclosure of

18     relevant information, that assignments and policy decisions or policy

19     discussions on which there is information, that is what the parties are

20     encouraged to focus on.

21             Are there any questions?  If the parties would consider that --

22     if only for finding the telephone numbers of former OTP members, if the

23     Chamber could assist and use the, because we have all the telephone

24     directories of the whole world on our computer, if you would have

25     difficulties to find the relevant sites, of course the Chamber is, as

Page 9542

 1     always both in practical matters, but also in order to -- when you think

 2     that trying to seek an agreement on what you could do together and

 3     whatnot, if the Chamber can be of any assistance, the Chamber always

 4     will, because the Chamber want solutions for problems rather than to keep

 5     them alive forever.

 6             Any questions?  If not, then I have one other very brief matter

 7     which I would like to raise.

 8             The Chamber has received a request for provisional release filed

 9     by the Stanisic Defence and wonders whether the Prosecution could respond

10     by next week Wednesday, not later.  If you are considering to grant it,

11     and I am not in any way anticipating on that, then also in view of what

12     is suggested by the Defence, then that might take some time to prepare

13     and for that reason to keep all options open, we'd like to have your

14     response as soon as possible.

15             MR. GROOME:  I believe we can, Your Honour.

16             JUDGE ORIE:  Mr. Bakrac.

17             MR. BAKRAC: [Interpretation] Your Honour, with your leave, may I

18     anticipate our further action.  I think that our request will be there by

19     the end of working hours today, so could you please ask in advance the

20     Prosecution to state their views on that request as well.

21             JUDGE ORIE:  We are talking about a dead-line.  Do you think,

22     Mr. Groome, that a response to a still unknown Simatovic request could be

23     there Wednesday as well.

24             MR. GROOME:  I would prefer not to commit to that, Your Honour.

25     I think there are different considerations here.  Although I understand

Page 9543

 1     the Chamber's point is that that because, if the Chamber were to grant

 2     Mr. Stanisic's, there are other logistical issues but we are quite busy,

 3     I'm understaffed at the moment, so I'm a little bit reluctant to commit

 4     to something unless it's absolutely necessary of the Court.

 5             JUDGE ORIE:  By next week.

 6             MR. GROOME:  Next Wednesday.

 7             JUDGE ORIE:  By next week, end of the week.

 8             MR. GROOME:  The person that I would give that assignment to is

 9     currently working on something.  If I could have an opportunity to speak

10     with them and I'll send an e-mail tomorrow to advise the Chamber if I can

11     commit to that, Your Honour.

12             JUDGE ORIE:  Well, your request not yet filed, at least comes a

13     slightly later, Mr. Bakrac, and the specific reason why the Chamber want

14     to have the response on the Stanisic Defence first because it might take

15     further -- might take more preparations which if we would grant the

16     Simatovic Defence, which again I'm not anticipating in any way on the

17     outcome of such a request, but might be -- it might be less complex.  It

18     doesn't come as a surprise what you tell us because during deliberations,

19     we asked ourselves whether we should not already or we should wait first

20     for a similar request.  So it doesn't come as a surprise to us.

21             Then any other procedural matter to be raised at this moment.

22             MR. GROOME:  Your Honour.

23             JUDGE ORIE:  Mr. Groome.

24             MR. GROOME:  Just a brief one.  Your Honours, on the 23rd of

25     November, beginning at transcript page 9322, the Chamber issued its oral

Page 9544

 1     decision with respect to Mr. Milovanovic's testimony and the Chamber

 2     changed the status.  The record is not clear whether the Chamber changed

 3     the status of the audio and video record as well and the Prosecution

 4     would submit that it's probably appropriate for that to be -- status to

 5     be changed to public as well.

 6             JUDGE ORIE:  Yes.  The reason for changing the status was Rule 70

 7     clearance, if I remember well.

 8             MR. GROOME:  It was requested by the government.  I wouldn't

 9     characterised it as Rule 70.  The Prosecution did not extend Rule 70

10     protection on that document.

11             JUDGE ORIE:  Yes.  But it was the non-existence anymore of any

12     doubt as to whether it could become public and it has got nothing to do

13     with specifically with transcript or video or audio.

14             MR. GROOME:  No, Your Honour.

15             JUDGE ORIE:  May I take it that the Defence has no further

16     submissions?

17                           [Trial Chamber confers]

18             JUDGE ORIE:  The Chamber agrees with you, Mr. Groome, that audio

19     and video should be included in that order.  The only thing we have not

20     verified, I don't know whether you have done that, whether there's

21     anything on the video about confidential exhibits, whether there's

22     anything to be seen on the screen, but usually if we discuss it, if the

23     transcript is open, it's only public material which is dealt with.

24             MR. GROOME:  I have very specific memory of my examination of

25     that witness and I'm quite confident there's nothing on the screen or

Page 9545

 1     nothing that's confidential that would be exposed by the Chamber changing

 2     the status of the video.

 3             JUDGE ORIE:  Yes, then audio and video recordings of the

 4     testimony are included in our order in which the status is changed from

 5     confidential to public.

 6             Yes, and it is clear that we are talking about the testimony of

 7     Mr. Milovanovic.  Yes.  Any other matter?  If not, we will adjourn and

 8     we'll resume on Tuesday, the 30th of November at quarter past 2.00 in

 9     this same Courtroom II.

10                           --- Whereupon the hearing adjourned at 4.23 p.m.

11                           to be reconvened on Tuesday, the 30th day of

12                           November, 2010, at 2.15 p.m.