Tribunal Criminal Tribunal for the Former Yugoslavia

Page 11076

 1                           Tuesday, 8 February 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 continue to hear the evidence of Witness JF-024, I'd

13     like to briefly deal with a few procedural matters.

14             Yes, the first one.  In relation to the answers of Witness JF-024

15     about before or after Operation Storm, there was an issue of whether the

16     parties would agree on that.  I do understand that there is agreement

17     between the parties, that they stipulate that Operation Storm started and

18     may I take it that you agreed on the 4th of August, 1995.  I think

19     hostilities, operational activities, started in the very early morning

20     hours of that day.  That's agreed and hereby on the record.

21             MR. GROOME:  Yes, Your Honour.

22             JUDGE ORIE:  Thank you.

23             Then, Mr. Jordash, two times ten minutes; you get that later

24     today.  We do that before a break.  Then you'll get exactly the

25     20 minutes.

Page 11077

 1             MR. JORDASH:  I don't know if it's inconvenient if I request that

 2     it be done tomorrow.

 3             JUDGE ORIE:  We'll do it tomorrow.

 4             MR. JORDASH:  Thank you very much.

 5             Then as far as Witness JF-052 is concerned, the Chamber

 6     understands that the Simatovic Defence has informed the Prosecution but

 7     also the Chamber that it would not request the re-call of Witness JF-052,

 8     which means that the Chamber has to instruct VWS to inform the witness

 9     that the instructions given earlier not to communicate with anyone about

10     his testimony are lifted -- are hereby lifted and VWS is invited to

11     inform the witness.

12             Mr. Groome, the Prosecution, by e-mail of the 4th of February,

13     has indicated that it would withdraw Witness JF-020.

14             MR. GROOME:  That's correct, Your Honour.

15             JUDGE ORIE:  Therefore, the Chamber hereby declares moot that

16     part of the Rule 92 ter motion of the 25th of May, 2007, which relates to

17     Witness JF-020.

18             MR. GROOME:  Thank you, Your Honour.

19             JUDGE ORIE:  Then, Mr. Jordash, you have indicated on the

20     28th of January through an informal communication that you intended to

21     file a motion seeking an order from the Trial Chamber for disclosure of

22     the existing information as indicated by Mr. Theunens in his response to

23     your questions and you would do that in due course.  Could you tell us

24     what due course practically means.

25             MR. JORDASH:  Well, it depends very much on Your Honours'

Page 11078

 1     decision on the outstanding motion to suspend all matters other than the

 2     remaining witnesses.

 3             JUDGE ORIE:  Yes.  Now, that matter, of course, has been

 4     complicated because the matter which was before the president is now

 5     before the Chamber, so it doesn't give us any guidance any more, that is,

 6     about the financial matters.  We have to look at it in context.

 7             MR. JORDASH:  Well, Your Honour, the reason we -- I don't know if

 8     this is helpful or not, but the reason we filed it in front of

 9     Your Honours was so that Your Honours could see the full picture,

10     although we still maintain that the two can be decided separately.

11             JUDGE ORIE:  Yes.  Now, let's be -- those matters have been

12     raised at a relatively late stage.  The Chamber will carefully look at

13     it.  And, of course, we don't have the whole of the picture; at the same

14     time we are still waiting for an answer by the Victims and Witness

15     Section -- from OLAD.  Until we have suspended anything, matters are not

16     suspended.  That sounds as if it goes without saying.  We are talking

17     here about a -- you are seeking an order from the Trial Chamber for

18     disclosure of existing information.  That is not a very complex matter.

19     Apparently you have clearly identified what your problem is in relation

20     to Mr. Theunens.

21                           [Trial Chamber confers]

22             JUDGE ORIE:  Having consulted with my colleagues, the Chamber

23     expects you to file that within, well, let's say preferably this week.

24     And if you are unable to do that, then by next Monday.

25             MR. JORDASH:  Your Honour, yes.

Page 11079

 1             JUDGE ORIE:  This Monday.  This is not to ignore or to -- but at

 2     the same time we are trying to resolve the matter you've raised as

 3     quickly as we can, but we can't do it in half a day.  And meanwhile we'll

 4     proceed, although we'll certainly keep in mind what your request is and

 5     we'll certainly not ignore that.  We'll look at it always in the context

 6     of what is there before us.

 7             Next item.  Mr. Groome, the Chamber noted that you have with the

 8     present witness not tendered all the related exhibits.  65 ter numbers

 9     1234 through 1237 have not been tendered.  That may be a well-considered

10     decision, I just draw your attention to that.  And if it is as we expect,

11     well-considered, then it needs no follow-up.  If, however, it would be a

12     mistake, then we might -- then at least you are aware of it by now.

13             MR. GROOME:  Your Honour, I thank you for pointing that out to

14     me.  And if I could have an opportunity during this first session just to

15     review my notes and I can report to the Chamber at the end of this

16     session.

17             JUDGE ORIE:  Yes.

18             Finally, the communication between the Simatovic Defence and the

19     Prosecution about the Theunens exhibits.  D183 and D195, where the

20     Prosecution would like to receive the answers to the request for

21     assistance launched by the Defence, dated the 10th of March, 2008, have

22     you received the information you needed, Mr. Groome?

23             MR. GROOME:  No, we have not, Your Honour.

24             JUDGE ORIE:  Mr. Bakrac, I thought you would sit together, and I

25     didn't ...

Page 11080

 1             MR. BAKRAC: [Interpretation] Yes, Your Honours.  We did have a

 2     meeting with the OTP yesterday in the afternoon between 5.00 and 7.00.  I

 3     think that the meeting was a constructive one.  And we are currently

 4     waiting.  In our old correspondence before Mr. Petrovic and I got

 5     involved in the case, there was some important information.  We cannot

 6     find that correspondence.  And we sent it to the National Council for

 7     Co-operation with The Hague Tribunal and as soon as we get a reply from

 8     them and the other material, we will inform the Prosecution.  We are

 9     doing our best to obtain it as quickly as possible.

10             JUDGE ORIE:  Does this mean that due to the complications caused

11     by the passing away of Mr. Jovanovic, that you couldn't find the answer

12     given to the Defence by the Serbian authorities?

13             MR. BAKRAC: [Interpretation] Yes, that's fully right,

14     Your Honours.  I found a notation that these documents were part of the

15     request that was resolved on the date you mentioned, 10th of March, 2008.

16     However, I was unable to find in the documents that remained after the

17     late Jovanovic, I was unable to find the request and the reply based on

18     which one could see that these two documents had been obtained from the

19     National Council for Co-operation.  This is why I applied to them once

20     again, asking them to confirm that it was them who had sent those two

21     documents to the Defence.

22             JUDGE ORIE:  I think Mr. Groome wanted more.  Mr. Groome wanted a

23     copy of the response to the RFA.

24             Is that right, Mr. Groome?

25             MR. GROOME:  Yes, Your Honour.

Page 11081

 1             JUDGE ORIE:  Okay.  So instead of seeking a confirmation, perhaps

 2     you ask for a copy of their response to your request for assistance.

 3     Now, have you asked this before, or is it now that you're asking?

 4             MR. BAKRAC: [Interpretation] No, Your Honours.  We asked for that

 5     just now, not earlier, because I had it written down that this had

 6     arrived on the 10th of March, and I believed that we had it in the

 7     documents that remained after the late Jovanovic.  However, once I went

 8     through those documents, I couldn't find it.  And as soon as I realised

 9     that, I applied to get a copy of that reply of the 10th of March, 2008.

10             JUDGE ORIE:  Yes.  Now, the reason why I was asking, because you

11     used the words "once again" on page 15, line -- page 5, line 16 and 17.

12             May I take it that this matter can be resolved easily within one

13     or two weeks?  Because it's difficult to understand that such a copy

14     could not be produced on a relatively short notice.

15             The other matter, in the same context, was information about

16     documents collected by the Defence investigator from the potential

17     Defence witness.  We have a series -- D190 had been resolved because you

18     had provided the information, Mr. Bakrac.  For all the others, that is,

19     D167, D174, D182, D185, D189, D191 through 193, and D195, have you given

20     the information Mr. Groome asked for?

21             MR. BAKRAC: [Interpretation] Your Honours, I will reply to your

22     first question.  I hope -- I sincerely hope that within a week, two weeks

23     at the most, we would receive a copy of this request -- rather, a copy of

24     the reply from 2008.  That's the first question.

25             The second question is the evidence provided by potential

Page 11082

 1     witnesses to the investigator.  We spoke about that to Mr. Groome

 2     yesterday and I asked him whether the information as to from whom these

 3     documents had been obtained would be enough to have them admitted into

 4     evidence, and Mr. Groome and his team, if I understood them well, said to

 5     us that that wouldn't be sufficient.  Then we agreed, and if the Chamber

 6     doesn't see a problem with it, that these documents should remain MFI,

 7     marked as MFI, until these witnesses come to testify here at which point

 8     in time we could admit these documents into evidence.

 9             It is not that important for the Defence -- I don't know what

10     your position is, Your Honours, but for the Defence it is not vital to

11     have these documents admitted at this very point.  If the information

12     about their provenance and from whom we had obtained them is not enough

13     for the Prosecution, then we will make sure that these witnesses come

14     here to testify and that we can admit these documents through those

15     witnesses.

16             JUDGE ORIE:  Mr. Groome, what's the problem if you know who

17     provided these documents?

18             MR. GROOME:  Your Honour, if the documents were provided by an

19     official source, an official government source, I think the Prosecution

20     probably would not be objecting, but they are provided by individuals.

21     And when it comes to collections of documents held by private individuals

22     that were not found in the archives of the government, the Prosecution

23     would want an opportunity to question those witnesses as to how they came

24     upon those before -- upon those documents prior to withdrawing its

25     objection to those documents.

Page 11083

 1             JUDGE ORIE:  Mr. Bakrac, the Chamber still doesn't understand

 2     that if you tendered these documents that you don't want to tell the

 3     Chamber, apart from telling Mr. Groome, where you obtained them from.

 4     Why don't you just tell it?  You asked the Chamber to decide on

 5     admission, you tendered the documents, and then you say, Where I got them

 6     from, I'm not going to tell you, or perhaps later or ... why is that?

 7             MR. BAKRAC: [Interpretation] Your Honours, I can consider this

 8     with Mr. Petrovic and with Mr. Simatovic.  I can consider this situation

 9     with them.  Yesterday when we spoke to the OTP I told them I would tell

10     you from whom I obtained them if you tell me that you wouldn't object to

11     their use.  They said it wasn't sufficient and then I said, Well, they

12     will then remain MFI until we bring in these witnesses.  But if you wish

13     me to do that, I will reconsider this with Mr. Petrovic and with

14     Mr. Simatovic and disclose to the Prosecution the required information.

15             JUDGE ORIE:  Yes, because the Prosecution, in order to form an

16     opinion about whether or not they oppose, they are asking for certain

17     information.  But, of course, apart from what the Prosecution says, of

18     course the Chamber, who has to decide on the admission, whether or not

19     there are any objections or not, the Chamber would like to know where the

20     evidence comes from as well.  So it's not only -- although that's how it

21     was initiated at this moment, it's not only a matter of you providing

22     information to Mr. Groome, but also -- it's also a matter of you

23     tendering documentary evidence, asking the Chamber to decide to admit it

24     and then not to tell us how you obtained it, which means that it's --

25     finally, if Mr. Groome forms an opinion about authenticity or ... of

Page 11084

 1     these documents, it's finally -- it's not Mr. Groome who decides on

 2     whether they are authentic or not, even if he would give up his

 3     objections.  And the Chamber might want to know, and perhaps becomes more

 4     and more interested hearing the whole discussion, to know where these

 5     documents come from.

 6             Please reconsider your position and tell the Chamber later today

 7     whether you are willing to give us the source, and to Mr. Groome as well.

 8     And then I do understand that in your negotiations with Mr. Groome you

 9     can put conditions like, if you want this, we only do it if you would not

10     further object, but, of course, the Chamber is not a negotiating partner.

11     The Chamber would just very much like to be informed.

12             We leave it to that at this very moment.

13             Yes, Mr. Bakrac.

14             MR. BAKRAC: [Interpretation] Your Honours, just a minute or two

15     more of your indulgence, please.  I have been avoiding to talk to you

16     about our situation, but now that we've touched upon this, I want this to

17     be put on the record.  As you know, Mr. Petrovic and I got involved in

18     this case when the Prosecution case was already underway.  We never had

19     opportunity to work with these witnesses as Defence witnesses.  We had no

20     time and no possibility to do that.  We contacted them via investigators

21     only on a limited issue of some witness's testimony, if we believed we

22     could get some information from them to verify the credibility of

23     witnesses who testified here.

24             I had to inform you of this, namely, that our contact with these

25     potential witnesses was extremely limited.  It really boiled down only to


Page 11085

 1     the upcoming witnesses and not to the preparation of our Defence, and

 2     this is why we never had a chance to talk to them about these documents,

 3     the documents that our team obtained in order to be put to some witness.

 4             However, I will consult my colleague Petrovic before the end of

 5     business today, and our client Mr. Simatovic, and I will give you our

 6     position.  And thank you for granting me these additional two minutes,

 7     Your Honours.

 8             JUDGE ORIE:  Thank you.  Then we can move -- unless there's any

 9     other urgent matter to be ...

10             Mr. Groome.

11             MR. GROOME:  Your Honour, I can report on those 65 ters if the

12     Court wishes me to at this point.

13             With respect to 65 ters 1234, -35, and -36, Your Honour, these

14     photographs are part of P2152 now in evidence, and a description of these

15     photographs can be found in P2151 in evidence, and they can be found in

16     the order that I've mentioned them, on pages 6, 5, and 11.

17             And with respect to 1237, Your Honour, these stills are in

18     evidence now as Prosecution Exhibit P2153.

19             JUDGE ORIE:  That's clear.  Thank you, Mr. Groome, for this

20     information.

21             Any further matter?  If not, we turn into closed session.

22                           [Closed session]

23   (redacted)

24   (redacted)

25   (redacted)


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18                           [Open session]

19             THE REGISTRAR:  We are in open session, Your Honour.

20             JUDGE ORIE:  Thank you, Madam Registrar.

21             Mr. Petrovic, could you be a bit more precise about the time you

22     would need tomorrow.  You've had now half an hour.

23             MR. PETROVIC: [Interpretation] Your Honours, I would kindly ask

24     you to allow me for a window of about two hours of effective work.  I

25     will try to rephrase my questions overnight in order to be as efficient


Page 11156

 1     as possible, and I will do my best not to exceed this period of two

 2     hours.

 3             JUDGE ORIE:  Mr. Groome, which opens the possibility that we

 4     could start with the next witness tomorrow.  How much time would you need

 5     for the next witness?

 6             MR. GROOME:  Your Honour, I've been informed by both Defence

 7     counsel that they do not intend to cross-examine the witness.  And

 8     Ms. Friedman will be taking the witness, and she estimates that it will

 9     be approximately 30 minutes.

10             JUDGE ORIE:  So that means that we would complete our programme

11     of this week well in time.

12             Mr. Jordash, then, of course, the two times ten minutes for you

13     we would need.  This will also assist the Victims and Witness Section to

14     make their planing with the witnesses.

15             We adjourn for the day.  And we'll resume tomorrow, Wednesday,

16     the 9th of February, at quarter past 2.00 in this same Courtroom II.

17                           --- Whereupon the hearing adjourned at 6.58 p.m.,

18                           to be reconvened on Wednesday, the 9th day

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