Tribunal Criminal Tribunal for the Former Yugoslavia

Page 10754

 1                           Thursday, 27 January 2011

 2                           [Open session]

 3                           [The accused entered court]

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

 5             JUDGE ORIE:  Good afternoon to everyone.

 6             Madam Registrar, would you please call the case.

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

 8     everyone in and around the courtroom.

 9             This is the case IT-03-69-T, the Prosecutor versus

10     Jovica Stanisic and Franko Simatovic.

11             JUDGE ORIE:  Thank you, Madam Registrar.

12             Before we go into closed session, there's one item I'd like to

13     briefly address.  It is the Chamber's expectation that we would finish

14     the next witness today.  We have prepared a meeting for tomorrow morning.

15     Now, if it would accommodate, especially Mr. Stanisic, to start a tiny

16     little bit later - I don't know how his programme looks like in the

17     morning hours - then we would consider that, but one thing is for

18     certain, we should finish tomorrow morning in this hearing not later

19     than, well, let's say 11.30, perhaps 11.45, because it's a hearing which

20     has been scheduled at a relatively late stage and other commitments are

21     there.  But I do not know to what extent it at all helps to have a little

22     bit of a later start and whether the Chamber will have a commitment on

23     not finishing any later than 11.30.

24             MR. JORDASH:  There is an expectation -- I've been discussing

25     matters with Mr. Bakrac, and we have an expectation that we are going to

Page 10755

 1     finish this witness well within time.

 2             JUDGE ORIE:  Yes.

 3             MR. JORDASH:  Mr. Bakrac thinks he might be about an hour and

 4     I'll be less than half an hour, so I don't know if that --

 5             JUDGE ORIE:  That even opens a totally different possibility,

 6     that is, that we would hear your submissions this afternoon.

 7             Now, I don't know how the communications with OLAD are at this

 8     moment, because you asked us yesterday to, well, not to put pressure, but

 9     at least to encourage OLAD to come with positions before tomorrow, before

10     you would make any submissions.

11             MR. JORDASH:  Yes.

12             JUDGE ORIE:  Which would mean that under the present

13     circumstances, if we have finished the witness, then I think in the break

14     we have after that, I would then encourage you to see where OLAD is at

15     this time so that you would know what exactly the problems are you are

16     facing or you are still facing.

17             MR. JORDASH:  Yes.

18             JUDGE ORIE:  So then I suggest that we proceed as follows:  We

19     first hear the testimony; then you have an opportunity, perhaps, to

20     verify with OLAD whether any problems have been resolved meanwhile or not

21     and what you want to submit; and then we'll hear that in half an hour

22     after that.

23             There was one other matter, that was the new questions to be put

24     to Mr. Theunens.  I don't know whether you have already discussed this

25     matter with the Prosecution.


Page 10756

 1             MR. JORDASH:  I haven't discussed it with the Prosecution, but I

 2     have sent Mr. Weber what we suggest are outstanding issues for him to

 3     consider and to let us know what --

 4             JUDGE ORIE:  Okay.  We'll then further hear from you and/or

 5     Mr. Weber, because scheduling a hearing for tomorrow just for five

 6     minutes wouldn't make much sense.

 7             MR. JORDASH:  No.

 8             JUDGE ORIE:  Then, Madam Registrar, it -- where we made all

 9     preparations to have a hearing tomorrow morning, it seems to be uncertain

10     whether we need that hearing.

11             Then unless there's any other matter, I would like to turn into

12     closed session.

13     [Closed session] [Confidentiality partially lifted by order of the Chamber]

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Page 10757











11 Pages 10757-10758 redacted. Closed session.















Page 10759

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11             THE WITNESS: [Interpretation] I solemnly declare that I will

12     speak the truth, the whole truth, and nothing but the truth.

13                           WITNESS:  JF-053 [Resumed]

14                           [Witness answered through interpreter]

15             JUDGE ORIE:  Thank you, Witness JF-053.  You'll now first be

16     examined by Mr. Groome who, as you know, is counsel for the Prosecution:

17             Mr. Groome.

18             MR. GROOME:  Thank you, Your Honour.

19                           Examination by Mr. Groome: [Continued]

20        Q.   Good afternoon, JF-053.

21             MR. GROOME:  Your Honours, on the 17th of November, 2010, the

22     Trial Chamber admitted a pseudonym sheet for this witness as P1613 under

23     seal.  Could I ask that we begin by bringing up to our screens

24     65 ter 6134.  It's a record of interview dated the

25     15th of February, 2008.

Page 10760

 1        Q.   JF-053, while that is being brought to our screens, do you recall

 2     giving a statement to an investigator by the name of Kaiser Rizvi on the

 3     11th to the 13th of July and the 15th to the 18th of December in the year

 4     2003?

 5        A.   Yes, I do.

 6        Q.   Do you recall meeting with a Prosecutor from the Office of the

 7     Prosecutor by the name of Klaus Hoffmann in November of 2007 and

 8     providing him detailed information you have related to this case?

 9        A.   Yes, I do.

10        Q.   In preparation for your appearance here today, did I ask you to

11     review both of these documents with a view towards correcting any

12     inaccuracies?

13        A.   Yes.

14        Q.   After having reviewed both of these documents, did you form a

15     view as to which one of them most reliably reflected your evidence?

16        A.   Since I'm seeing both of my statements for the first time since I

17     gave them, this second statement is authentic except for a few minor

18     changes.  As for the first one, I really absolutely couldn't -- not

19     absolutely, but I wouldn't really want to rely on it because there are

20     quite a few things there that I didn't say.

21        Q.   Now, the statement that you are saying is more reliable, is that

22     the one given to Mr. Hoffmann?

23        A.   Yes.

24        Q.   Would you you please look at the screen before you.  It is an

25     information report authored by Mr. Hoffmann and dated the

Page 10761

 1     15th of February, 2008.  Is this the record of your interview with

 2     Mr. Hoffmann in 2007, and recorded by him, which you reviewed in advance

 3     of your appearance here?

 4        A.   Yes.  And I have very slight changes as far as that is concerned.

 5        Q.   Did you inform me earlier today of the paragraph numbers of those

 6     paragraphs which you wish to make corrections to?

 7        A.   Yes.  And I would like to ask if I could use the paper that I

 8     have with me as a kind of note.

 9        Q.   Well, let me ask you a question first.  Did you record on some

10     hotel stationary the corrections you wished to make?

11        A.   Yes.

12        Q.   Do you believe that would assist you this afternoon in making

13     these corrections?

14        A.   Yes, and that is why I would like to ask to use it, if possible,

15     please.

16             MR. GROOME:  Your Honour, I'd ask permission for the witness to

17     take out the piece of paper that he wrote the corrections on.

18             MR. JORDASH:  This is the item we've had disclosed, I presume?

19             MR. GROOME:  No, it's not.  The item that was disclosed were the

20     corrections to the earlier statement.  I don't have a copy of whatever he

21     has in his pocket.

22             MR. JORDASH:  Okay.  No objections.

23             JUDGE ORIE:  No objections.

24             Mr. Bakrac, no objections either.

25             You can use the -- your notes in which you jotted down your --

Page 10762

 1     the matters you would like to change, so feel free to do so.

 2             MR. GROOME:

 3        Q.   The most orderly way that we can proceed is for me to draw your

 4     attention to each individual paragraph you indicated you wished to change

 5     and ask the usher to display that paragraph on the screen before you.

 6     When we all can see the paragraph, would you tell us what amendments you

 7     wish to make.  Once we have finished with a paragraph, I will advance

 8     until we come to the end of the document.

 9             Is that understood?

10        A.   Yes.

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11 Page 10763 redacted. Closed session.















Page 10764

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21             MR. GROOME:

22        Q.   Apart from the corrections that you have now told us about, are

23     there any other corrections you wish to make before you affirm the

24     truthfulness and accuracy of this record of interview?

25        A.   I don't have anything else to add here.  It's just as I talked

Page 10765

 1     with Mr. Hoffmann and that is there complete.

 2        Q.   If I were to ask you the same questions here today that

 3     Mr. Hoffmann asked you on November 15th, 2007, would you provide the same

 4     answers in substance?

 5        A.   Yes.

 6        Q.   Now that you have taken the solemn declaration, do you affirm the

 7     truthfulness and accuracy of this written record of your evidence?

 8        A.   That is what I said, yes.

 9             MR. GROOME:  Your Honours, at this time the Prosecution tenders,

10     pursuant to 92 ter, 65 ters -- 65 ter number 6134 into evidence under

11     seal.

12             JUDGE ORIE:  I hear of no objections.

13             I suggest the following:  That the document will be MFI'd; that

14     you upload, Mr. Groome, a version without paragraph 8 and without

15     paragraph 20, blackened out; and that what then remains is admitted into

16     evidence.  And we'd like to be informed as soon as you have uploaded the

17     redacted version, preferably before the witness leaves, so that we know

18     whether it's a final decision, the admission of this evidence.

19             Please proceed.

20             MR. GROOME:  I would ask now that a courtesy sheet that I gave

21     to --

22             JUDGE ORIE:  I've forgotten to ask Madam Registrar to assign a

23     number, an MFI number, already to this.

24             THE REGISTRAR:  65 ter 6134 becomes P2108 MFI'd under seal,

25     Your Honours.

Page 10766

 1             JUDGE ORIE:  Thank you, Madam Registrar.

 2             MR. GROOME:  I'd ask that the Registrar now hand out -- there's a

 3     courtesy sheet that I provided to Defence counsel, and I have some for

 4     the Chamber.

 5             Your Honours, in the Hoffmann statement there are 14 items of

 6     evidence which are referred to and thereby associated to it.  Nine of

 7     these are already exhibits in this case.  Of the remaining five, one is

 8     not an exhibit on the Prosecution exhibit list; one is irrelevant to this

 9     case; and for the remaining, that JF-053 had limited or no information

10     related to their authenticity or substance.  The Prosecution has created

11     a courtesy sheet that enumerates them all and may assist the Chamber in

12     identifying with certainty the exhibits JF-053 comments on in P2108

13     marked for identification.  This sheet is identified as 65 ter 6139, and

14     I would ask that it be marked for identification.

15             JUDGE ORIE:  Madam Registrar, the number of this sheet

16     would be ...

17             THE REGISTRAR:  65 ter 6139 becomes P2109, Your Honours.

18             JUDGE ORIE:  And is marked for identification.

19             MR. GROOME:  Your Honour, I have no --

20             JUDGE ORIE:  Under seal.

21             MR. GROOME:  Your Honour, I have no further questions of this

22     witness.

23             JUDGE ORIE:  Yes, I'm just going through that list.  What you

24     actually say, there's one item remaining, isn't it?  We have 14 items,

25     nine already exhibits, five remaining, one is not on the exhibit list, so

Page 10767

 1     you don't want to rely on that, one is irrelevant --

 2             MR. GROOME:  Number 13, Your Honour, is a employment record of

 3     the witness that is in 1999, I believe.  It's after the indictment

 4     period.

 5             JUDGE ORIE:  That's irrelevant.  That's number 13.  And then I'm

 6     just trying to follow you in full.

 7             MR. GROOME:  Then, Your Honour, numbers 2, 6, and 8, it's the

 8     Prosecution's view that the witness has insufficient information about

 9     these documents to assist the Chamber.

10             JUDGE ORIE:  Yes.  And then the one remaining is ...

11             MR. GROOME:  I believe that's all now, Your Honour.

12             JUDGE ORIE:  I have now nine plus four.  And the last one, the

13     fifth, was then 6139.

14             MR. GROOME:  If it assists, I can go through them:  1 is the

15     exhibit that's not on the list.  Numbers 2, 6 and -- 2, 6, and 8 are the

16     ones the witness has limited information.  And the fifth one, number 13,

17     is the one that's irrelevant.

18             JUDGE ORIE:  Now again, 2, 6, 8, 13 are out for the reasons you

19     gave, and then I'm just --

20             MR. GROOME:  Number 1 on the list is the other one.  They have

21     strike-through font.

22             JUDGE ORIE:  Yes.  And then 9 remain.  It's clear to me.

23             MR. GROOME:  And, Your Honour, just so it is also clear to the

24     Chamber, the number in the second column is the paragraph in the exhibit

25     now which comments on the particular exhibit.


Page 10768

 1             JUDGE ORIE:  Yes.  Thank you for that.  It's now perfectly clear

 2     to me.

 3             Witness JF-053, you'll now be cross-examined.

 4             Who goes first?  Will it be you, Mr. Bakrac?

 5             You'll now be cross-examined by Mr. Bakrac.  Mr. Bakrac is

 6     counsel for Mr. Simatovic.  You'll find him to your left.

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Page 10769











11 Pages 10769-10777 redacted. Closed session.















Page 10778

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 5        Q.   Thank you, Witness, I'm now done with your corrections.  And I

 6     just have a few questions for you.  We will proceed in order.

 7             First tell me:  Jovica Milacic, you mentioned him in the

 8     corrections, who is that?

 9        A.   Jovica Milacic was the commander of the Kosovo Battalion of the

10     PJP units of the police that were formed then.  He was the superior

11     officer at the SUP Pristina staff command, actually deputy commander.

12        Q.   He is from Kosovo, isn't he?

13        A.   Yes, he's from Pec.

14        Q.   I'm going to try to go more slowly, but I'm just kindly asking

15     you to pause between question and answer so the interpreters can

16     interpret what you're saying.

17             So can you tell us whether he was a member of the public security

18     department of the MUP?

19        A.   Yes.

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Page 10779











11 Pages 10779-10811 redacted. Closed session.















Page 10812

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23             MR. GROOME:  Yes, Your Honour.  Just a couple of questions.

24                           Re-examination by Mr. Groome:

25        Q.   JF-053, you were asked, today, about Beli Manastir.  For those of


Page 10813

 1     us who are not completely conversant in the geography of the region, in

 2     what country is Beli Manastir?

 3        A.   It is in Croatia now.  At that time it was also in the

 4     Republic of Croatia, but at the time there was Slavonia, Baranja, and

 5     Western Srem, the Republic of the Serb Krajina.  I mean, it was outside

 6     the territory of Yugoslavia, if that is what you wanted to ask me.

 7        Q.   Can you give us some idea about how far it would be in kilometres

 8     to the present border between Serbia and Croatia?

 9        A.   Well, it's not very close.  I haven't been there in

10     16 or 17 years, but, yes, it could be around 100 kilometres.  I don't

11     know exactly.

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Page 10814











11 Pages 10814-10816 redacted. Closed session.















Page 10817

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11                           [Open session]

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

13             JUDGE ORIE:  Thank you, Madam Registrar.

14             There are no further witnesses.  Mr. Jordash would like to make

15     submissions.  For the submissions to be as meaningful as possible, you

16     would need a little bit more time, Mr. Jordash, is that well understood?

17             MR. JORDASH:  Well, I have to see OLAD first to, I think,

18     informally have their response --

19             JUDGE ORIE:  Yes.

20             MR. JORDASH: -- and then if I could be given a little time to

21     absorb that, please.

22             JUDGE ORIE:  Yes.  Now, what would be a safe time to resume?

23     Would that be -- a quarter past 6.00, would that do?  I mean, the problem

24     is that if you say, No, make it 6.31, then I know who finally will be the

25     victims --


Page 10818

 1             MR. JORDASH:  I think quarter past --

 2             JUDGE ORIE: -- interpreters, security, transcribers, and I have

 3     victimised them sufficiently already in their lives.

 4             MR. JORDASH:  Quarter past 6.00 is absolutely fine, thank you.

 5             JUDGE ORIE:  Quarter past 6.00.  And if any time remains, I'll

 6     read one more decision.  We'll hear, at a quarter past 6.00, further

 7     submissions on the matters Mr. Jordash raised recently, and we'll then

 8     finish not one second later than 7.00.  We take a break.

 9                           --- Recess taken at 5.23 p.m.

10                           --- On resuming at 6.17 p.m.

11             JUDGE ORIE:  Mr. Jordash, you asked to be allowed to make

12     submissions in relation to the remuneration of Defence counsel.  I

13     earlier asked whether there would be anything wrong if we would already

14     inquire a bit into what the problem was.  Of course, the case file shows

15     already what happened in the past.  We have mainly sought to acquaint

16     ourself with the problems by reading the application the Defence has made

17     to the president of the Tribunal, in which it asks for at least a

18     decision on a request to review the earlier decision taken by the

19     Registry, which mainly deals with -- I would say personal circumstances,

20     that is, the basis, the assessment, of -- of the personal assets.

21             We have also read the Registrar's response to that.  And,

22     finally, you were so kind to provide us with a request dated the

23     19th of November, 2010, which deals with rather different matters, that's

24     how to calculate, how to assess what is fair, as far as remuneration is

25     concerned under the system, dealing with various matters.

Page 10819

 1             We have read all that.  So to that extent we are familiar with

 2     the problems.  You are now invited to make submissions.  I do not know

 3     whether your meeting with OLAD has created any further -- whether it has

 4     resolved in any way partly or as a whole or not at all the problems on

 5     the two levels you are facing.

 6             MR. JORDASH:  The simple answer to that is that, no, it hasn't.

 7     OLAD's position is that it has no discretion either to alter the monthly

 8     payment nor to disburse any further funds which would deal with the

 9     serious problem.

10             JUDGE ORIE:  And you would still need the whole of the

11     30 minutes, you would say?

12             MR. JORDASH:  Yes.

13             JUDGE ORIE:  Matters being unchanged.

14             MR. JORDASH:  Well, Your Honour, in many ways I could speak for

15     much longer, but obviously I won't.  And I'm very happy to put some of

16     these details, which are complex, onto paper.  But given the urgency, I

17     wanted to outline as succinctly as possible what the real problem is.

18             And I'll say from the outset it's always uncomfortable to have to

19     stand up and talk about what can be easily in some minds painted as

20     Defence counsel complaining about fees.  It's not that.  On the contrary.

21     I think all counsel in this case are funded at a level which is far less

22     than counsel in other cases of a comparable nature and in large part have

23     done so without complaint.  But we do complain now because the situation

24     is such that what we would be asked to do, what I would be asked to do,

25     what our team would be asked to do in order to be able to prepare this

Page 10820

 1     case properly, would make the remuneration to us at a level which is

 2     unacceptable and which would make the possibility of attracting a

 3     qualified co-counsel as practically impossible.

 4             And OLAD's position, that it has no discretion, may or may not be

 5     right.  I'll address that shortly and argue that it's not right.  But

 6     whether it has discretion or not, whether the scheme which remunerates

 7     cases is untouchable, in our submission, that's not the point.  The point

 8     is that pursuant to Rules 20 and 21 of the Statute, the Trial Chamber has

 9     the power -- sorry, not the power, but the inherent duty to ensure a fair

10     trial and a proper administration of justice.  And in circumstances, we

11     submit, where it's plainly the case that the funds do not allow a

12     properly constituted team, in our submission, the Trial Chamber ought to

13     intervene.  And whether that's by building in discretion to the scheme

14     that OLAD says doesn't have that discretion, or simply overriding that

15     scheme, in our submission, then that shall have to be done.

16             And in a nutshell, the problem is this:  The calculation that

17     OLAD make provides us with money which will fund support staff only, and

18     OLAD calculate that support staff for a Level 3 case ought to receive in

19     the region of 15,000 euros per month.  Our support staff bill is

20     comparable to other cases of a similar size and complexity, leaving money

21     to pay for one counsel.  That money is expected to come from the accused,

22     who, as Your Honours are aware, has been ordered to fund part of his

23     Defence case.

24             So during the Prosecution case, we have effectively been funded

25     at a level which allows support staff to be employed and one counsel, and

Page 10821

 1     we've dealt with that situation by simply one counsel doing a large part

 2     of two counsel's work and legal assistants picking up the rest.  The

 3     Defence case now is before us, and OLAD have not and say they will not

 4     indicate as yet what their funding of the Defence case will be.  But we

 5     can say at this stage that the client, the accused, has agreed and can

 6     only pay 7.000 euros a month, which, if OLAD do not increase the budget

 7     for the trial in the Defence phase, we find ourselves in exactly the same

 8     situation.  The difference is that myself and Mr. Knoops took the view

 9     that with his part-time work and the rest of the team working

10     unreasonable hours, we could cope with the Prosecution case.  I have

11     absolutely no such hope that that could -- that situation will exist in

12     the Defence case.  In our submission, it is impossible to present this

13     Defence case in this situation.

14             The problem appears to be based, first of all, on OLAD's

15     calculation, which is based on an assumption that ordinarily trials

16     proceed at five days per week.  That's what we were told at the time we

17     applied for funding.  That's the assumption that we had until it became

18     clear during the Prosecution case that, having spoken to other teams --

19     and I would say at this point, this policy of OLAD, and that assertion by

20     OLAD, is not in any way transparent.  We, the Defence, could not have

21     looked at a document which confirmed that indeed trials do proceed at

22     that rate.  We discovered that that assertion that trials proceed at five

23     days a week was wrong, having spoken to various other Defence teams.

24             Having taken that as a bench-mark, OLAD then looked at our

25     sitting of two days a week and the scheme it applies effectively then

Page 10822

 1     produced a figure which pays our team at a part-time -- on a part-time

 2     basis.  Now, I won't go into the minutia of the way that the calculations

 3     have been done; it's contained in the letter which we have given to my

 4     learned friends from the Prosecution as well as Your Honours.  But it, in

 5     our submission, amounts to this:  Being paid at a part-time rate, doing a

 6     full-time job.  There's no point in time during this trial, despite the

 7     fact that we have been sitting two days a week for part of it, that we

 8     have been working part time.  On the contrary, our team has been working

 9     for at least six days a week throughout the whole of the course of the

10     trial and sometimes even more.

11             And there is something, in our submission, which is, whatever the

12     technicalities, we would urge Your Honours to accept that as fact, and,

13     in our submission, that ought to raise serious queries and questions

14     about the rationality of the policy which OLAD used to calculate funding.

15     But when one gets into the technicalities, then one can easily see, in

16     our submission, why that calculation was always going to go awry.  If one

17     bases the funding of a case simply and only on the number of days a week

18     it sits in court, it fails to take into account how much work is being

19     done out of court.  In this case, and I think maybe this is one of the

20     biggest factors, we've had practically every witness through 92 ter,

21     probably halving, maybe even taking two-thirds less time in court because

22     we haven't heard witnesses viva voce when giving direct evidence.  So we

23     can reduce the amount of court time simply by having all witnesses heard

24     pursuant to 92 ter, and correspondingly on the OLAD scheme the funding

25     for the Defence is reduced.  And yet, of course, it doesn't make one iota

Page 10823

 1     of difference to the Defence work that the Rule 92 ter procedure reduces

 2     the amount of hours spent in a courtroom.

 3             We still have to pour over hundreds and thousands of pages of

 4     Prosecution evidence which is admitted through the 92 ter procedure, just

 5     that our work now is focused more on what we do outside of court as much

 6     as it is on what happens in the court.

 7             I said I wouldn't go into the technicalities, but it is, as set

 8     out in our letter, a scheme which, we submit, if it is the correct

 9     scheme, exceptions ought to be made in this case for the reasons set out

10     in the letter.  Firstly, that OLAD based the assessment on cases sitting

11     five days a week when they obviously, in our submission, do not.  Two,

12     that the OLAD's calculation fails to take into account the peculiarities

13     of this case or the particular circumstances of this case.  And, thirdly,

14     well, I was going to state as my third ground the increase in expected

15     duration of the Prosecution case, but I think that might be moot because

16     I think that there's an expectation --

17             JUDGE ORIE:  The situation has changed slightly since you drafted

18     this letter, yes.

19             MR. JORDASH:  So the third ground, then, is the one I've just

20     outlined, which is the failure to consider the impact of Rule 92 ter on

21     method of calculating payment.

22             If I can just shortcut things.  We reluctantly come to the

23     Trial Chamber in a situation which is not of our making.  There is simply

24     nothing the present team could have done to change where we end up today.

25     Perhaps one answer will be, Well, you have a co-counsel on record,

Page 10824

 1     Mr. Knoops, and he should come to court, come what may, whatever your

 2     financial situations, a lawyer of his experience should be obliged to

 3     come to court and work for what it would amount to derisory money.

 4     Mr. Gosnell, a very talented lawyer who worked very hard for very little

 5     money, we could expect him to come back and do the same.  Or, in our

 6     submission, what should happen is that we should -- the Court should

 7     intervene and ensure that there are additional funds to hire a suitably

 8     qualified co-counsel.

 9             The alternative is that we ask Mr. Knoops to come back, as I've

10     indicated, and of course part of that is asking the present team to work

11     for what would again amount to be derisory remuneration.  The better

12     approach, we would say, is to fund a Level 3 case at a level which allows

13     a proper team to be employed, with the expectation that we will work, if

14     necessary, night and day, as we do, to ensure that the accused obtains a

15     proper Defence.  And we raise the point at this stage because that's what

16     a Defence case entails; it entails working night and day, far more, in my

17     experience, than what is required to meet a Prosecution case during the

18     Prosecution phase.

19             And there's a simple reason for that:  Because the work involved

20     in interviewing witnesses and preparing them for court is

21     labour-intensive.  There are no shortcuts.  It requires two counsel to

22     sit down with witnesses and obtain the necessary evidence to ensure a

23     fair Defence.  And anything less than two counsel doing that job will

24     undoubtedly, in our submission, lead us into -- in a position where we

25     have to apply for adjournments constantly simply to ensure that the

Page 10825

 1     Defence case is prepared at a level which ensures Mr. Stanisic's fair

 2     trial rights, a situation which, for many reasons, including

 3     Mr. Stanisic's health, we would really like to avoid, as much as we would

 4     like to avoid working in unreasonable circumstances with conditions which

 5     are unreasonable when compared to other staff employed at this Tribunal.

 6             Those are our submissions, unless I can assist any further.

 7             JUDGE ORIE:  Mr. Jordash, what do you exactly expect the Chamber

 8     to do at this moment?  What we know is that apparently under Article 13

 9     of the assignment of Defence counsel - what is it, rules? - no, I

10     always -- it's the directive on the assignment of Defence counsel,

11     apparently under Article 13 you have raised one of the issues with the

12     president of this Tribunal.  We've also seen that the Registrar has put

13     into question whether it is the president at this moment who is the

14     competent authority to deal with that matter, or we've also seen that the

15     Chamber can play a role in this respect as well.

16             Now, on what basis exactly would you expect what the Chamber

17     should do?  Is this to be understood as a motion and then a motion based

18     on what exactly?  I'm trying to find out exactly what is the legal,

19     procedural context in which we have heard what you told us and which is,

20     of course, a story which is in itself clear.  So that's ...

21             MR. JORDASH:  Yes.  Let me put the matter as plainly as I can:

22     That we are, as a Defence team, unable to do the work that is necessary

23     to participate fully in this process.  There are a number of motions

24     outstanding.  There is massive evidence which hasn't been looked at by

25     the Defence team, including most of the Mladic diaries, including

Page 10826

 1     hundreds and thousands -- thousands of pages of disclosure which has been

 2     made over the last year also, including starting to focus on what shape

 3     the Defence case will take.  In an ideal world, what would be happening

 4     now is that a co-counsel would be in Belgrade beginning to interview and

 5     prepare witnesses.  In an ideal world, a co-counsel would be, as

 6     Mr. Gosnell was, considering these motions that are outstanding and --

 7             JUDGE ORIE:  Mr. Jordash, that's perfectly clear.  But you are

 8     not inviting the Chamber to dream about a perfect world, would you?  So

 9     therefore I'm again asking you:  On what basis, in what exact procedural

10     context you're asking for what, or would you say I wanted to brief you

11     about a present situation and you can expect a written motion within ten

12     days, or ... I mean, I'm just trying to find out -- apart from trying to

13     understand what your problems are, I'm trying to find out in what

14     procedural context you are addressing us at this moment.  The urgency of

15     the matter and how heavily it's felt to be weighing on the shoulders of

16     the Defence, that is perfectly clear.

17             MR. JORDASH:  We are seeking the Trial Chamber's intervention in

18     a matter that is within the primary competence of the Registrar on the

19     basis that the matter now goes to the fairness of the trial and that

20     matter is the funding being offered by OLAD.  And we're asking the

21     Trial Chamber to intervene --

22             JUDGE ORIE:  In what way?  Do you expect us to give orders?  Do

23     you expect us to become mediators?  Do you expect us to ... or are there

24     any other specific motions you have in your mind on fair trial issues

25     where you say, Okay, we'll file that motion and then ask you to do this

Page 10827

 1     and that with the background this problem?  It's not -- still not

 2     entirely clear to me.  Intervene, what way?

 3             MR. JORDASH:  Order the -- ultimately order OLAD to fund, provide

 4     funds for co-counsel, which are, in our submission, clearly laid out in

 5     the Registry's funding documents what a co-counsel should receive.  That

 6     would deal with the fair trial issue which has arisen as a result of the

 7     assessment of funding for this case.

 8             OLAD's response to that is that is doesn't have discretion.  I've

 9     read the Defence counsel payment scheme --

10             JUDGE ORIE:  Well, I take it that OLAD says this in response to

11     what you have written and that as far as I understood it, that I didn't

12     know what the -- what the gist of their answer would be but that they are

13     preparing to give you a written answer to the 19th of November letter, is

14     that -- so there we would read exactly why they consider they are not --

15     that they have no discretion to do what you ask them to do.

16             MR. JORDASH:  Yes, they are going to write a letter which --

17     which outlines --

18             JUDGE ORIE:  I take it will explain at least their position, also

19     in legal, procedural context, what their competences are and what they

20     can do, what they cannot do, what the president should do, what the

21     Trial Chamber should do, at least that's -- we need a clear picture of

22     that.

23             MR. JORDASH:  Yes.  It -- I understand why Your Honours are

24     asking what we are asking of you.  But to a degree, it's difficult to

25     be -- to settle on one.  I settled on one, but the alternative is that I

Page 10828

 1     ask the Trial Chamber to sit alternative weeks during the Defence case so

 2     that I can, with the present team, manage without funding for a

 3     co-counsel.  That's an alternative.  I mean, that's a situation which is

 4     my -- obviously not my preferred submission.

 5             JUDGE ORIE:  And which would create, at the same time, because

 6     then the number of sitting days would be reduced -- further reduced, one

 7     day a week or two days a week, which would -- your problem is that that's

 8     a wrong basis for it, so it would not really resolve your problem either.

 9             MR. JORDASH:  Well, it would resolve it in --

10             JUDGE ORIE:  Unless --

11             MR. JORDASH: -- in one sense, in that I could then ensure a fair

12     trial for Mr. Stanisic.  And we would all be impoverished in the Defence

13     team but at least we would achieve a fair trial from the funding

14     perspective.

15             I do want to emphasise this, because I appreciate that there may

16     be fingers pointed at the accused, but I want to emphasise that during

17     the Prosecution case the amount that the client had to pay, when

18     calculated against the indigency order, would still have left us in this

19     position.  If he'd paid his full amount, which he has by borrowing from

20     third parties, it still left us one co-counsel funding short.  And that,

21     in our submission, shows the gravity of this situation.  OLAD funding

22     plus what they expect from the client, and we are still one counsel

23     short.

24             JUDGE ORIE:  Could you please explain to me again -- what is

25     clearly on my mind, especially in relation to the application you made at

Page 10829

 1     the president, is that a certain amount has been determined, you say it's

 2     a wrong amount, but at least that's -- I haven't read anything about

 3     what -- assuming, and that's for argument sake, take that as a starting

 4     point, what, then, on a monthly basis, that is the -- what is -- we have

 5     the assessment by the Registry, and he says, I'll pay so and so much less

 6     because the accused is in a position that he can afford to pay, apart

 7     from that there is a lot of discussion about that, and then that is also

 8     divided over those month and that reduces the monthly, which means that

 9     he is expected, the accused is expected, to pay the remainder.  Now, a

10     very practical question, I'm not by asking for any details or where he

11     got the money from, whether he had it or whether he lent it:  Has that

12     contribution as calculated by the Registry, you've obviously received

13     that?

14             MR. JORDASH:  Just about.  I mean, with a little short but not

15     sufficient to make a bit --

16             JUDGE ORIE:  Substantially yes, but not in full.

17             MR. JORDASH:  Yes.

18             JUDGE ORIE:  Okay.  I also have another question for you.  I

19     tried to fully understand -- and your complaints about sitting two, three

20     days, and the starting point five days a week sitting.  Now, this is not

21     the beginning of an argument but just a matter of whether I understand

22     your position well.  Is it true that the consequence of your position in

23     relation to that, where you emphasised that other cases are not sitting

24     five days a week either, that, as a matter of fact, not only the Stanisic

25     Defence, but all the Defences are suffering from this wrong starting

Page 10830

 1     point to some extent, as a system?

 2             MR. JORDASH:  Well, it depends.  I don't know what OLAD have said

 3     to other teams.  Now -- and that's part of the problem.  There's no way

 4     for us in the Defence to check, except for inquiring into personal --

 5     into other teams' financial details.  And I don't know if that's the

 6     starting point in other teams' funding arrangements.

 7             JUDGE ORIE:  If that is the system, what you're saying is that

 8     they use that as system, a normal case is five days a week, we are

 9     supposed to sit, well, let's say, 2 days or 3 days, whatever, but they

10     have reduced remuneration on a monthly basis because we are not sitting

11     the five days a week.  Now, you've also pointed at other cases which,

12     although expected to sit full time, are in effect sitting less.  You are

13     referring to one case, 2.3 days on average.  If they are calculated at

14     five days a week, again, if they are calculated in accordance with the

15     system that is expected to sit on five days a week, then they would have

16     to suffer also from this, I would say, system error.

17             MR. JORDASH:  Yes.  I -- yes.

18             JUDGE ORIE:  It's just for me to -- whether I fully understand

19     your argument, that the argument is the whole of the system is wrong in

20     taking five days a week as realistic for a case which is full-time

21     sitting.

22             MR. JORDASH:  Yes.  I think there's one case that sits five days

23     a week at the Tribunal, which is the Mico Stanisic and --

24             JUDGE ORIE:  Zupljanin.

25             MR. JORDASH -- Zupljanin case, and the reaction in the Defence

Page 10831

 1     room is one of horror amongst the Defence teams, that that schedule seems

 2     to the rest of us almost impossible.  And so I take from that -- and from

 3     what I understand of their funding, they get the full amount, so I infer

 4     from that that OLAD do take five days as the starting point.

 5             JUDGE ORIE:  Again, I'm not starting any argument with you, I'm

 6     just trying to verify whether I understood especially this argument which

 7     prominently appears in your 19th of November letter.

 8             MR. JORDASH:  Yes.

 9                           [Trial Chamber confers]

10             JUDGE ORIE:  I checked with my colleagues.  We at this moment

11     have no further questions, that is, I think we understood what you wanted

12     to bring to our attention.  I'll come back to the Chamber intervening

13     soon, but I see that Mr. Petrovic is on his feet.

14             Would you like to add anything, Mr. Petrovic?

15             MR. PETROVIC: [Interpretation] Yes, with your leave, Your Honour,

16     very briefly.

17             First of all, I would like to say that our situation is basically

18     identical to the one described by Mr. Jordash.  And we would like to

19     support everything that he said.  That is the first point I wish to make.

20             Secondly, perhaps our attempt to make a suggestion.  Since,

21     Mr. President, your question was how the Trial Chamber could intervene.

22     Can we give our interpretation, our understanding, of the directive on

23     appointing counsel and see how the Trial Chamber can influence that.

24     There are two problems, at least as far as we are concerned.  So as

25     Mr. Jordash said, there is the calculation of the total sum, and it is

Page 10832

 1     based inter alia on the fact that the first modality that prevailed in

 2     this case all the way up to October in this case envisaged two days of

 3     sitting per week.  On the basis of Sate [phoen] decision in December last

 4     year, a decision was made on financing our Defence, bearing in mind two

 5     court days --

 6             JUDGE ORIE:  No, Mr. Petrovic, I'm going to stop you.  Why?

 7     Mr. Jordash has announced that he would like to make submissions on a

 8     matter.  The Chamber, therefore, was able to prepare for such

 9     submissions.  We even asked whether the Chamber was in a position to

10     inquire into what the situation was.  We have read the various documents

11     submitted to the president.  We were provided by Mr. Jordash with

12     detailed reasoning in his 19th of November letter.  I do not mind if you

13     want to raise your matter as well but then prepared in a similar way as

14     Mr. Jordash has done, that is, explore all the formal matters or at least

15     put on paper in detail the problems you are having.

16             I, at least, after having been here for some ten hours, am just

17     not able to grab all this on the basis of an oral submission.  So

18     therefore - and apart from that, time is running as well - I'm not

19     stopping you in raising the matter, in arguing the matter, I'm just

20     stopping you in the way you do it, that is, by oral argument at this

21     moment.  Yes.

22             MR. PETROVIC: [Interpretation] Your Honour, just two sentences.

23     When taking a decision, OLAD takes into account the opinion of the

24     Trial Chamber.  For example, if the Prosecution case took longer, OLAD

25     asks the Trial Chamber to explain why there was an extension.  In this

Page 10833

 1     situation, as far as I understood my colleague Mr. Jordash, OLAD planned

 2     on having the Prosecution case finished by the end of December but it

 3     will go well into February as well.  So could the Trial Chamber please

 4     explain that to OLAD, why the Prosecution case has gone on longer,

 5     because it is not due to anything, we think, that we did or that the

 6     Stanisic Defence did.  So it's not right and it's not fair that basically

 7     for these two months the two Defence teams will be acting without

 8     receiving any remuneration.

 9             Secondly, the Trial Chamber could explain to OLAD what an

10     increase from two to three days per week means in terms of our

11     obligations, the material that we have to deal with, everything that we

12     have to do.  It seems to me that the Trial Chamber -- thank you.

13             JUDGE ORIE:  I'm going to stop you there as well because there

14     were more than two sentences.  But it's clear to me that you say that --

15     although this matter, I don't know to what extent it has been raised with

16     OLAD, we know for sure as far as the Stanisic Defence is concerned, that

17     you would say, if OLAD is seeking further information, give the proper

18     information and explain to them exactly what's happening in this

19     courtroom.  That is understood, and you gave two examples.

20             Mr. Groome, is there anything the Prosecution would want to say

21     in this context?

22             MR. GROOME:  Your Honour, the Office of the Prosecutor obviously

23     supports the fair trial rights of the accused.  I think it would be

24     inappropriate for us to interject ourselves into the current discussion.

25     But, of course, if the Chamber has the view that the Prosecution has some

Page 10834

 1     information that might assist the Chamber, we stand ready to provide it.

 2             JUDGE ORIE:  Thank you, Mr. Groome.

 3                           [Trial Chamber confers]

 4             JUDGE ORIE:  Mr. Jordash, as may be clear from what I said

 5     earlier, it's not entirely clear yet what kind of intervention you are

 6     expecting from the Chamber.  If you have a certain intervention on your

 7     mind, you should formalise that.  You should make a motion, and whatever

 8     motion that is, to seek an order to the Registry and then an order based

 9     on what exactly and then to invoke whether it's also the matter with a --

10     pending at the president's office or whether it's just the present

11     discussion, we would have to know that in detail and in very concrete

12     matters and also formalised.  You certainly achieved that you have drawn

13     the attention of the Chamber to the problems you are facing at this

14     moment.

15             MR. JORDASH:  Your Honour, we'll do that.

16             JUDGE ORIE:  You'll understand we can't just base any activity,

17     whatever it would be, a decision, order, otherwise intervening in

18     mediation, whatever, without having a concrete, formalised request, which

19     could be request for everything, let's say, give us another week, because

20     whatever it is, it's not entirely clear, apart that you are seeking the

21     support of the Chamber for something.  You should make that concrete.

22             MR. JORDASH:  Well, Your Honour, I'm --

23             JUDGE ORIE:  Intervention at the Registry's level.  I promised

24     something to our interpreters.  We might have an opportunity to -- we

25     also further think about what you told us.  We leave it to that at this

Page 10835

 1     very moment, but we expect a formal initiative from you.

 2             MR. JORDASH:  As soon as we receive the OLAD's letter, we'll file

 3     a written motion.

 4             JUDGE ORIE:  Okay.  Then, I was talking about victimisation

 5     earlier.  What I feared would happen did happen.  We adjourn as quickly

 6     as we can.  We will not sit tomorrow.

 7             We, therefore, adjourn until Tuesday, the 1st of February,

 8     quarter past 2.00 in the afternoon, Courtroom II.

 9                           --- Whereupon the hearing adjourned at 7.01 p.m.,

10                           to be reconvened on Tuesday, the 1st day

11                           of February, 2011, at 2.15 p.m.