1 Tuesday, 14 June 2011
2 [Pre-Defence Conference]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 2.17 p.m.
6 JUDGE ORIE: Good afternoon to everyone in and around this
8 Madam Registrar, would you please call the case.
9 THE REGISTRAR: Good afternoon, Your Honours. This is
10 IT-03-69-T, the Prosecutor versus Jovica Stanisic and Franko Simatovic.
11 JUDGE ORIE: Thank you, Madam Registrar.
12 We are here today to have our Pre-Defence Conference in the case
13 against Jovica Stanisic and Franko Simatovic, Prosecutor against Jovica
14 Stanisic and Franko Simatovic. The Pre-Defence Conference we find under
15 Rule 73 ter.
16 The first point on my agenda was to stress a word of welcome to
17 new co-counsel for Mr. Stanisic. Mr. Jordash.
18 MR. JORDASH: He's otherwise engaged, but I shall pass on Your
19 Honours' welcome.
20 JUDGE ORIE: Yes. We're glad that apparently the matter of
21 counsel, co-counsel, has been resolved, and I take it then that we'll see
22 Mr. Martin soon in court.
23 MR. JORDASH: Tomorrow.
24 JUDGE ORIE: Tomorrow.
25 MR. JORDASH: Thank you.
1 JUDGE ORIE: Then I move on to the second item on my agenda,
2 which is about decisions to be taken in -- under Rule 73 ter.
3 The Stanisic Defence has requested to be allowed to call 33
4 witnesses in 87 hours, and the Simatovic Defence requested to be allowed
5 to call 20 witnesses in 19 -- 92.5 hours. There are a few uncertainties
6 such as the time needed for the examination of expert witnesses in the
7 Stanisic Defence. They were not included in the 87 hours and --
8 Mr. Jordash.
9 MR. JORDASH: Your Honours, we are in the process of instructing
10 and having the reports finalised.
11 JUDGE ORIE: I'll deal with the expert reports in a moment. So
12 therefore I'm just pointing in this moment that this uncertainty which
13 appears from your list.
14 MR. JORDASH: Yes, and it's difficult for us to provide an
15 estimate. We can try if Your Honours would like.
16 JUDGE ORIE: The Chamber is aware that we have to live with some
17 uncertainties. That is unavoidable, and therefore to now start
18 speculating on whether you would need 3 or 5 or 2.5 or 6 hours with that
19 expert is not something I think would greatly assist the Chamber in
20 making the determinations it has to make.
21 We have carefully looked at the submissions, and we have looked
22 at the summaries of the witness statements, the time estimates for
23 needed -- the time needed for examination-in-chief of those witnesses.
24 Of course, we have also looked at whether these would be 92 ter, 92 bis
25 witnesses. We have given it full consideration, and at this moment the
1 Chamber is inclined to determine that the number of witnesses would be
2 accepted by the Chamber but that both the Stanisic Defence and the
3 Simatovic Defence would be granted 70 hours to present their cases. When
4 I'm talking about 70 hours, then I'm talking about 70 hours
5 examination-in-chief of the witnesses which appear on the list. But
6 before making any final determination in this respect, the Chamber would
7 like to invite the views of the Defence if the Chamber would thus decide,
8 and if the Prosecution would like to make any further comments on it,
9 although it not perhaps being the primary concern of the Prosecution, of
10 course, they can do so as well.
11 Who would be the first to give any comments if there is any
13 MR. JORDASH: Your Honour, it's -- we would prefer to be able to
14 make written submission on the issue, and we would also prefer if it's
15 possible if Your Honours would be able to provide some guidance as to how
16 Your Honours arrived at that reduction. Only then it seems would we be
17 able to address them - excuse me - specifically. Obviously, if Your
18 Honours want me to deal with it now, I will, but in the absence of
19 understanding precisely why Your Honours came to that conclusion, it's
21 We took what we thought was a conservative approach, and we
22 thought it was conservative because of the breadth of this indictment and
23 the volume of evidence the Prosecution had called, and we attempted to
24 nonetheless direct our defence at the issues we think are the live
25 issues, and we would submit that much of what the Prosecution have led is
1 not, but that was our reasoning.
2 I can expand on the point in relation to specific witnesses if
3 Your Honours wish, but our preference would be able to do it in writing
4 if at all possible.
5 JUDGE ORIE: Yes. Mr. Jordash, of course, there's a bit of a
6 problem in Rule 73 ter, unless you're asking for further delays, which
8 "After having heard the Defence, the Trial Chamber shall
9 determine the time available to the Defence for presenting evidence."
10 I mean, that's what we're supposed to do during this 60 -- 73 ter
11 Pre-Defence Conference.
12 One second, please.
13 [Trial Chamber and legal officer confer]
14 JUDGE ORIE: To the extent there would be any misunderstanding,
15 perhaps there is not, that when I'm talking about 70 hours, it's 70 hours
16 for the Stanisic Defence and 70 hours for the Simatovic Defence, but that
17 is understood, I take it.
18 Apart from that, Mr. Jordash, I told you that Rule 73 ter
19 requires that once we have heard the Defence, that the Trial Chamber
20 shall determine the time available to the Defence for presenting
21 evidence, and this Chamber thought it wise to give you an impression on
22 what our preliminary thoughts were on the basis of the written
23 submission, which would allow you to better make any comments. Of
24 course, we could go into all kind of details, not to say that the Chamber
25 has not certain questions but just to -- at the same time, we also know
1 that this is not mathematics on from the beginning. I mean, one plus one
2 is two, that's clear, but whether you need one hour or 50 minutes or 65
3 minutes for a witness, of course, is a matter of -- I would say kind of a
4 mixture between experience, observation on how time was used during the
5 Prosecution's case.
6 Just to take one example where there still would be a possibility
7 for some discussion. We saw in a submission by the Prosecution that
8 they, for example, had not a clear idea on what - and think it was one of
9 the witnesses proposed by you - what they could expect from -- to hear
10 from Mr. Blewitt, for example, that at least the Prosecution sought for
11 further clarification of that, which brought a totally different question
12 to the Chamber's mind, is has there ever been any discussion between the
13 Prosecution and the Defence on whether they could agree on any fact you
14 would elicit from Mr. Blewitt as a witness? If there would be -- I would
15 say if there would be any witness which might be someone who would give
16 information to which the Prosecution perhaps could easily agree, that
17 might be Mr. Blewitt, who is one of the former employees of the
19 So, therefore, one of the things that comes to our mind is has
20 this been discussed, and if not, why not, and would it not save time if
21 you would agree on these matters? I don't know.
22 Just a simple question. Did you discuss this with the
24 MR. JORDASH: Well, in a sense, yes, in that we contacted the
25 Prosecution, first of all, for consent to contact Mr. Blewitt.
1 JUDGE ORIE: Yes.
2 MR. JORDASH: We gave our reason for that and what we hoped he
3 would be able to confirm, and then we sent an e-mail to Mr. Blewitt
4 through the Prosecution. So the issue that we want Mr. Blewitt to
5 address is there and it has been communicated to the Prosecution. So
6 we --
7 JUDGE ORIE: Okay. Yes. What you say is, "They didn't invite us
8 to agree on any matter," but you did not invite them to agree on any
9 matter either. Is that --
10 MR. JORDASH: No, I'm not -- I'm not blaming the Prosecution for
11 not responding.
12 JUDGE ORIE: No.
13 MR. JORDASH: It's equally at -- both sides are at fault for not
14 being [indiscernible], but we do blame the Prosecution for suggesting
15 they don't know what Mr. Blewitt was expecting to say.
16 JUDGE ORIE: Okay. Well, let's not -- that was just, I would
17 say, the link to my question rather than -- but, of course, one of the
18 questions is also looking at what -- what the kind of issue is you would
19 like to -- to go through with Mr. Blewitt, it should be at least given an
20 attempt to see whether there could be any agreement on the matter,
21 because it seems that, at least from what I see, is that these are
22 relatively objective, factual-seeking, not the facts you would consider
23 the first to be highly contentious. So therefore, then, we ask ourselves
24 why would we spend time on a witness who comes from far away if not at
25 least an attempt has been made to see whether the information you expect
1 to elicit from that witness could be facts on which you would easily
3 Now, that's -- of course, as I said before, there are -- we are
4 living with some uncertainties, but, of course, we went through all of
5 the material, and we made an assessment, as I said on the basis of past
6 experience, on the basis of the information you've provided there. Not
7 to say that if in the future you would be able to clearly demonstrate
8 that assessment was wrong, that that could under no circumstances be
9 corrected, but if you were asking us to give us the considerations we
10 based our assessment upon, it is mainly your submissions, and then, of
11 course -- again, it's not mathematics here, as you are aware of, as
12 everyone is aware of. So therefore, if you say, "We'd like to make
13 submissions in writing," at this moment under 73 ter that would cause at
14 least some problems. So if there's anything you would like further
15 explain at this moment you have an opportunity to do so.
16 MR. JORDASH: Thank you, Your Honours. I will very briefly
17 address the point.
18 JUDGE ORIE: It's just an example. You're aware of that.
19 MR. JORDASH: Yes, of course. The first 18 witnesses are in some
20 way the most substantial and substantive, and we made a decision to try
21 to keep the number of witnesses down and to keep the witness list short,
22 but to have witnesses who could testify to a breadth subjects, and that
23 is what the first 18 witnesses attempt to do. We have tried in that list
24 to cover the principal subjects as we see them, the structure of the DB,
25 the Krajina -- or Croatian crime base, and the Bosnian crime base, and
1 also the Red Beret subject.
2 The indictment is broad. It is broad in terms of time. It's
3 broad in terms of geographical locations, and it is broad in -- in the
4 sense that the Prosecution have adduced thousands of pages of evidence
5 through 92 ter. Almost every substantive witness that the Prosecution
6 called, and there was substantially more than what we are attempting to
7 call, came with in most times 40 -- up to 40 or 50 exhibits, some of them
8 10, 20, and up to a hundred pages long, and previous testimony from
9 previous trials at the ICTY and often several statements.
10 We can't match that, because we haven't got time to take 92 ter
11 statements of that kind of length. With the best will in the world, with
12 the time we were given - and we're not complaining about that - but with
13 the best will in the world, we would could not possibly have taken 92 ter
14 statements for our witnesses except for one or two, and we would hope to
15 be able to attempt that with some more of the witnesses over the next few
16 months. But in short, the Prosecution case is big and it's detailed, and
17 it makes tens, or, rather, hundreds of allegations which we have to
18 analyse and work out which ones we really need to meet, and we've tried
19 to do that, and our witnesses we believe do do that, but these witnesses
20 will need to cover a range of topics.
21 If I take DST-31, a witness who was close to Babic and -- and,
22 Your Honours will know that the Prosecution -- that Prosecution witness
23 has statements and testimony which run into the hundreds of pages. We
24 want to call DST-31, and we want to lead him in evidence for four to five
25 hours. If the one calculates the length of time that that Prosecution
1 witness gave evidence, it would come to significantly.
2 In order to meet that allegation or that series of allegations
3 made by Babic and made by the other witnesses the Prosecution called in
4 relation to the Krajina, we need a minimum of time, and in our respectful
5 submission, the estimates we've given for the Krajina witnesses, for
6 example, witnesses 427, a total of approximately 6, 7, to 18 or 19 hours,
7 is way, way, way less than the Prosecution's corresponding evidence which
8 was submitted through 92 ter, and so in our submission, the estimates are
9 conservative. I could make the same point, and I will -- will -- and I
10 do make the same point in relation to the other witnesses. It's very
11 difficult to meet paper evidence which comes in the hundreds and
12 thousands of pages without the benefit of the time to apply pursuant to
13 92 ter. It's difficult it do that without the minimum of time.
14 DST -- staying with DST-31, he will cover from late 1990. His
15 evidence will focus on 1991, and it will move through the military and
16 political events with emphasis on the former throughout 1991 and into
17 1992. In our submission, four to five hours is about right, and actually
18 probably a bit less, but we tried to factor in concerns which we knew
19 Your Honours would have about timing.
20 In relation to the witnesses we've tried to or we want to call
21 for a longer period, DST-30 and DST-42 and DST-40, these are perhaps the
22 biggest witnesses in terms of the subject matters they cover and the
23 length of time that their evidence will cover. Your Honours can see why,
24 perhaps, they -- we consider them the biggest witnesses. It's very
25 difficult to address a Prosecution theory which expands from 1991 to 1995
1 without witnesses such as these who present an overview of topics.
2 Again, we submit, that is a conservative estimate, and you can see with
3 DST-40, we've -- we're mindful of the fact that that witness could, if we
4 don't try to -- or attempt to put that witness into 92 ter form, we
5 really wouldn't be able to complete that witness in anything less than
6 probably eight or nine hours.
7 So I think those are the points I'd like to make. We would -- or
8 we will certainly endeavour to utilise 92 ter. We hope that over the
9 summer we'll be able to achieve that with at least one witness and
10 hopefully up to three witnesses more and that will shortcut things we
12 Those are the submissions I would make at this stage.
13 JUDGE ORIE: Before we -- could the Simatovic Defence also
14 comment on what I just said.
15 MR. BAKRAC: [Interpretation] Your Honour --
16 JUDGE ORIE: You do so, of course -- it was clear to the Chamber
17 that whereas the number of witnesses you propose is lower, that of course
18 a substantial part of the time taken in the case presentation is covered
19 by the time you'd need to call Mr. Simatovic as a witness in his own
21 Please proceed, Mr. Bakrac.
22 MR. BAKRAC: [Interpretation] Yes, Your Honour. Thank you. Good
23 afternoon to everyone, and thank you for giving me the floor.
24 As far as our time estimate is concerned, for the most part it
25 tallies with what our learned friend Mr. Jordash said concerning the
1 scope of the indictment and the fact that it covers a period of five
2 years as well as two states, Bosnia-Herzegovina and Croatia.
3 There's also the fact that the number of witnesses is great, as
4 well as the amount of material put forth by the Prosecution in their
5 case. On top of that, I'd also add another fact which I believe
6 Mr. Jordash did not explore sufficiently in his address. That is to say
7 that there are statements under Rule 92 ter where we have three important
8 witnesses and a large amount of material concerning those witnesses.
9 There is also some other material under 92 quater. It's a lot of
10 material and a lot of time that it requires as well as that there is a
11 lot of territory that we wish to cover in our case.
12 First I wanted to say this, and I hope it will be broached later
13 as well, that this Defence attempted to persuade the Chamber, as well
14 as -- the Trial Chamber as well as the Appeals Chamber to be accorded
15 more time given the facts that we have and the time we need to launch our
16 case. I agree that we may not have been fully successful in providing
17 sufficient quality arguments to persuade both Chambers of the necessity
18 to be accorded sufficient time to prepare ourselves. However, this
19 Defence did not wish to calculate, to try to buy more time, and we did
20 our utmost to conclude all investigations to date. However, we were
21 unable to. We still have a number of things on our list that need to be
22 verified in the field, and we will strive to be efficient.
23 The time we were given and the time we estimated in view of the
24 number of witnesses is something that we believe is necessary in order to
25 address adequately the evidence and allegations the Prosecutor put forth
1 against our client, and we believe that in that light, the number of
2 witnesses we proposed is necessary.
3 I must say that the time allocated to us was a limiting factor,
4 and we couldn't work on many 92 ter statements, because it would require
5 a lot of time for every single witness. As you saw, we decided instead
6 to have viva voce testimony. During an analysis that Mr. Petrovic and I
7 conducted, we realised that the time we estimated for our viva voce
8 witnesses does not go over the time that we would otherwise need to hear
9 the witnesses according to 92 ter.
10 I'll be completely honest, Your Honour. Perhaps we did some
11 things on purpose so as not to be put in the -- in a situation which we
12 would have to ask you for additional time for each and every witness, and
13 we may have reserved some additional time in our initial estimates, but
14 what I'm trying to say now is that now there's a number of additional
15 potential witnesses. I won't speculate with any numbers, but we are
16 considering another dozen or up to 15 witnesses whom we now have to get
17 in touch with. We will try to include that time within the time we
18 initially sought, although we might be forced to ask for a bit of
19 additional time.
20 Irrespective of the fact that some parts of the indictment are
21 common to all -- to both the accused, it would be fair to both of them to
22 be given at least the amount of time used by the Prosecution in the
23 presentation of their case.
24 So as not to repeat what Mr. Jordash has already said, which is
25 something that goes for both the accused, I just wanted to say that we
1 believe that the time we provided in our 65 ter list is the time
2 necessary for us to carry out our work with due diligence. In the time
3 we estimated, we also concluded two expert witnesses. We know from
4 experience before this Court that expert testimony is usually longer than
5 the testimony of fact witnesses. These two witnesses will take up 15
6 hours in total, I believe.
7 As far as we could see, the Stanisic Defence would not have such
8 experts of that type. That is why we believe it necessary to bring such
9 witnesses before you and the time we need for their testimony ought to be
10 included in the time allocated to us.
11 There's nothing else that I wish to add with regard to the issue
12 of necessity to bring all those witnesses and that they be given the time
13 we asked for. I am not sure Mr. Jordash broached that topic in detail.
14 The accused Franko Simatovic, in addition to all the locations of
15 crimes and facts relating to those locations, we also had witnesses which
16 addressed Mr. Simatovic's relationships, say, with the Serb Volunteer
17 Guard of Zeljko Raznjatovic, Arkan, and other bodies and people. These
18 things remain to be cleared up, and we believe it is necessary for us to
19 respond by hearing witness testimony.
20 Given the time, we were definitely not in a position to work on
21 our 92 ter statements. We will consider doing so with some of the
22 witnesses, but we also believe that 92 ter statements would not amount to
23 saving much time.
24 As regards the estimated viva voce testimony, we also -- we only
25 took into account those topics which are necessary to show you why we
1 call certain witnesses. We did not wish to expand, and each witness will
2 specifically address only those facts and knowledge they have regarding
3 the accused Simatovic, concerning a specific event, location, or a
4 statement of any of the witnesses that the Prosecution put forth.
5 This is all I wanted to say at the moment, Your Honour, and I
6 apologise beforehand if this fails to meet your need for further
8 JUDGE ORIE: Mr. Bakrac, I would have one question for you. You
9 said while it would be reasonable to grant, at least for each accused,
10 the same time as the Prosecution has used for presenting its case.
11 Could you give us examples of not the accuseds' cases before this
12 Tribunal where every accused got the same amount of time as the
13 presentation of the Prosecution's case as a whole. Because that's what
14 you're claiming. I'm seeking whether there's any support to be found in
15 the practice of this Tribunal.
16 MR. BAKRAC: [Interpretation] Your Honour, I'm a bit taken aback.
17 I really didn't did not expect to you ask me that, so for time being I
18 can just tell you about my personal experience. This is my fourth time
19 that I appear as Defence counsel. In the first two cases, there was a
20 single accused involved. The third one was the Kosovo case. It is true
21 that in the Kosovo case not all of us were allocated the same amount of
22 time as the Prosecution -- or, rather, we had less time -- or, rather,
23 not each and every Defence got as much time as the Prosecution did. I
24 agree with you on that.
25 However, for example, in the Kosovo case the accused Lukic had
1 received more time than the Prosecutor, I think, because he was in a
2 special situation. He was the only one who was accused from police
3 structures. I believe that you are more familiar with jurisprudence than
4 I am, and if that did exist somewhere in case law, you would have
5 certainly alerted me to that. However, I think that that was not the
6 case until now, but still that does not necessarily mean that I should
7 not think that it would be fair for the accused Simatovic to get the same
8 amount of time that the Prosecutor got for their case, with all due
10 I did not study all of this. I believe that you are more
11 familiar with all of this, and I believe that it's going to be hard for
12 us to find an example of this kind. However, the very fact that there
13 were no such examples until now, with all due respect, does not make me
14 think that it would not be necessary for this to be done in this specific
15 case in view of the very specific circumstances involved in this
16 particular case, that is, with the Defence of the accused Simatovic.
17 Taking all of this into account, I think it would be fair for
18 Simatovic to get at least get those 90 hours that we had envisaged, and
19 that was roughly the amount of time that the Prosecution had for their
21 JUDGE ORIE: Thank you, Mr. Simatovic for that answer.
22 [Trial Chamber confers]
23 JUDGE ORIE: The Chamber will use the first break to consider
24 whether the submissions by the Simatovic and the Stanisic Defence cause
25 us to take more time or to decide that -- either that we stick to the
1 preliminary assessment we've made or whether we would change that, so,
2 therefore, the parties will hear further after the first break how we
3 will proceed in that respect. But where I earlier announced that the
4 Prosecution would have a possibility to -- to address the Chamber in
5 relation to these matters, if they would wish to do so, Mr. Groome, you
6 have that opportunity now.
7 MR. GROOME: Your Honour, the Prosecution has no specific
8 submissions with respect to the time allocated for either Defence case.
9 JUDGE ORIE: Thank you for that. Then whether or not we'll
10 decide today and what our decision would be if we would decide today,
11 you'll hear that after the first break.
12 I move to another item on the agenda, which is scheduling. And,
13 of course, the scheduling, I couldn't say that it could never be impacted
14 upon by a decision on the total of the time, but that is unlikely in view
15 of the details that we'll discuss at this moment.
16 We sent an e-mail to the parties and that's hereby -- yes, to the
17 parties, and that's hereby put on the record that an e-mail of the 16th
18 of May expressed that the Chamber would like to hear both opening
19 statements on the 15th of June, that is, tomorrow, and that the Chamber
20 should be informed if this would cause any problems.
21 The Stanisic Defence then sent an e-mail expressing its wish to
22 have two hours available for its opening statement, and the Simatovic
23 Defence e-mailed requesting that its opening statement be postponed.
24 The Chamber then instructed the Simatovic Defence to file their
25 request and shortened the deadline for responses.
1 The request and the Prosecution's response were filed on the 2nd
2 and the 3rd of June respectively, and on the 8th of June, the Chamber
3 informed the parties that a request to postpone the opening statement was
5 Now, the reasons for that decision will follow. However, the
6 opening statements are expected to be given tomorrow.
7 Now, Mr. Bakrac, we have no time estimate for you. If -- if we
8 start with a thinking of three and a half effective hours a day where
9 Mr. Jordash asked for two hours, the Chamber wondered whether we could
10 hear both opening statements in one session, which would, if you would
11 divide it equally, which would cost Mr. Jordash 15 minutes out of the two
12 hours he asked for, but we have no indication yet from you. Could you
13 please tell us how much time you need.
14 MR. BAKRAC: [Interpretation] Your Honour, it's not going to be
15 necessary. I expected you to ask that, and I had intended to provide
16 information to the Court in good time.
17 We consulted the accused, and I've already said that we have not
18 completed our investigation yet. In that situation, we believe that it
19 would not be right for us to make an opening statement. Your Honour,
20 with all due respect, from the point of view of this particular aspect, I
21 did look at the jurisprudence of the Tribunal, and I saw that when there
22 were several accused persons involved in a case, the opening statements
23 were usually made when the actual defence case of each and every
24 individual started. That was the case in Kosovo, Bosanski Samac, and so
25 on. So in case law, we can find quite a few examples of that situation;
1 namely, that the Defence of an individual accused would give its opening
2 arguments at the beginning of their own case.
3 I appreciate the fact that the Trial Chamber looked at our
4 request and our arguments and refused to allow us to give our opening
5 statement at the beginning of our own case, so with due respect, I say
6 that in that situation our Defence has given up on an opening statement
8 JUDGE ORIE: Yes. Mr. Bakrac, have you also used -- looked at
9 the case law where which specific reasons a request for postponement of
10 an opening statement was denied? Could you tell the Chamber now what
11 were the reasons sometimes for not allowing the postponement of an
12 opening statement?
13 MR. BAKRAC: [Interpretation] Your Honour, I have to be quite
14 frank. I checked the situations when it was allowed. I did not check
15 the other situations, so I can do that during the break and then respond.
16 I really would not want this position of ours to be misinterpreted by the
17 Trial Chamber. We fully understand that you have your own position that
18 you presented; namely, that our arguments are not sufficiently strong.
19 Therefore, the assessment of our Defence is that an opening statement is
20 not compulsory, so in this situation when we have not fully completed our
21 investigation, our assessment is that it is better for us not to give an
22 opening statement. Perhaps after the Stanisic case we would have to
23 change our original opening statement if we were to give one once our own
24 investigation is completed too; that is to say, when we would be supposed
25 to start our own Defence case.
1 JUDGE ORIE: Yes. I earlier indicated that the reasons for our
2 decision would follow, and that usually means that we have given it quite
3 some thought and that we'd like to explain to the parties why it exactly
4 was that we denied your request postponing an opening statement, and I'm
5 not giving the full reasons, could have an impact on the fairness of one
6 party towards the other. If you could adapt your situation once you had
7 heard the case presentation by the Stanisic Defence, the Stanisic Defence
8 would not have a similar possibility to do the same. It may have some
9 consequences, for example, for the Prosecution, not knowing what your
10 case is. And if you do not make an opening statement, of course, that
11 would be to some extent the same, would -- could cause some problems for
12 the Prosecution as well when cross-examining Defence witnesses during the
13 Stanisic case presentation.
14 We've given it quite some thought, and that's the reason why I
15 asked you whether you had also looked at the cases where it was not
16 allowed, because that gives a balanced view on what the case law before
17 this Tribunal is.
18 We do therefore understand that in view of the circumstances that
19 you would not make an opening statement at the beginning of the case of
20 the Defence, and that includes both Defence.
21 Mr. Jordash, this also means that there's no major problem in
22 using the two hours you've asked for.
23 MR. JORDASH: Thank you.
24 JUDGE ORIE: Mr. Groome.
25 MR. GROOME: Your Honour, I'd just like to express my concern
1 that there was a pre-trial brief filed by the Simatovic Defence, the
2 initial Mr. Jovanovic, and there's been some language in the --
3 JUDGE ORIE: You've -- I take it that you're now referring to
4 what you already put on paper: That you have some concerns about a case
5 shifting, the Simatovic Defence saying that they do not have the same
6 concept any more, and that it's unclear to you what that exactly means.
7 You've put that on paper already, I think in your request for -- I don't
8 know exactly where it was. For having an opportunity to -- to reply or I
9 think reply to the -- to the response given by the Simatovic Defence on
10 your urgent motion for -- or is the place wrong, but I remember that I've
11 read some concerns expressed there.
12 MR. GROOME: We have, Your Honour. And I don't intend to repeat
14 JUDGE ORIE: Yes.
15 MR. GROOME: Other than to point out, if there is no opening now
16 and if the original pre-trial brief is disavowed, the requirements of
17 65 ter (F) require that the Defence set out at least in general terms the
18 nature of the accused's defence, and I believe that's an obligation that
19 cannot be postponed. Both the Prosecution and Stanisic Defence have the
20 right to know, at least in general terms, what the nature of the
21 accused's Defence is so that we can prepare our examinations of the
22 witnesses during the Stanisic Defence.
23 JUDGE ORIE: Yes. I see what -- what you're saying is that
24 Rule 65 ter (F) requires the Defence to set out the -- what the nature of
25 the Defence, and if there are changes, you say, apart from whether you
1 make an opening statement or not, that the Prosecution would be entitled
2 to know that there is another -- that the accused's defence has changed
3 and therefore the nature of the accused's defence as well.
4 MR. GROOME: Yes, Your Honour.
5 JUDGE ORIE: And that you are entitled to be informed about that.
6 MR. GROOME: Yes, Your Honour.
7 JUDGE ORIE: Mr. Bakrac, the Prosecution has pointed at several
8 places where you say, well, that is what Mr. Jovanovic may have thought,
9 but we have different concepts. We have a different opinion that -- we
10 find that in various places, including, for example, your choice of an
11 expert, where you say, well, it may be that it fitted into the concept of
12 Mr. Jovanovic, but it does not fit into our concept of Defence any more,
13 which at least suggests that the pre-trial brief may not be valid in
14 every respect any more since it was filed.
15 Could you please respond to the concerns, because you'd just
16 expressed it as a concern. I'm not asking for any relief, Mr. Groome.
17 Could you briefly address that concern.
18 MR. BAKRAC: [Interpretation] Your Honour, thank you once again
19 for giving me the floor. I understand your concern, however, I assure
20 you that there is no cause for concern. It would be a thankless job now
21 in this point of view to say something about our late colleague and about
22 his pre-trial brief. We want to be very proper. We want to take a
23 humane position with regard to this.
24 If I understand the trial brief -- pre-trial brief correctly, it
25 means challenging the allegations from the indictment. It was my
1 understanding -- again I do apologise. I don't want this to sound very
2 rigid or uncollegiate or improper in view of our late colleague. I
3 understood it as a mere denial of the charges. From that point of view,
4 we don't want to change that. We totally denied the charges in the
5 indictment ourselves. We denied his participation in JCE, any links with
6 the immediate perpetrators, his links with the possible participants in
7 some enterprise, and the Defence is going to remain on those lines.
8 Perhaps we did not formulate our position very skilfully, but
9 even as far as the expert is concerned, it is not our concept that is
10 being changed substantially. This - how do we put this? - the previous
11 expert had missed the point altogether. The question of police expertise
12 is so broad, Your Honour, that volumes and volumes can be written about
13 that. So what we want to achieve through our expert is for him to focus
14 on some other points compared to those that the previous expert had
15 focused on.
16 Again, I do apologise in advance to the expert if he is listening
17 to this. We were not pleased with the concept or the way in which this
18 was presented or with the clarity of the presentation. Quite simply, my
19 colleague Mr. Petrovic and I assessed that working with this expert would
20 involve a new expertise altogether, and the question remains how much we
21 would obtain in terms of what we really want to obtain. Therefore, we
22 believe that with the new expert we are going to focus a great deal more
23 on the key points of our defence and the key topics too.
24 JUDGE ORIE: Mr. Bakrac, I think that at this moment we do not
25 need a full explanation as why you changed experts in this respect. The
1 concern, you said your concern, addressing me but it was mainly the
2 concern expressed by Mr. Groome, the concern was not necessary. To be
3 quite honest, looking at the language you used, and you said may have
4 been a bit unfortunate language and not expressing exactly what you
5 meant, I think it leaves still some questions open, but rather than
6 elaborate on them in the abstract for hours and hours, perhaps we should
7 closely look at what we will hear from you in the near future.
8 We'll consider whether or not we would invite you, but I'll first
9 have to discuss this with my colleagues, to update us on the Rule
10 65 ter (F), whether there are any real changes in the nature of the
11 Defence of Mr. Simatovic. We might need to re-read for those purposes,
12 and perhaps the Prosecution could do so as well, the -- the pre-trial
13 brief. And, of course, it's a bit perhaps too simple to say, "Well, the
14 pre-trial brief denied all the charges. We're still doing that and
15 therefore there's no change." That might and bit too superficial an
16 approach to deal with the matter as the matter which is of some concern
17 to Mr. Groome.
18 I do not intend to further deal with this matter at this moment
19 in length.
20 The next scheduling item I wish -- I hope to be able to discuss
21 before the break is about the first witnesses for the Stanisic Defence.
22 We do understand that -- and, Mr. Jordash, whenever there would be any
23 need to go into private session, you'll let me know.
24 We do understand that the situation is such that you do not feel
25 free, rightly or not, but to disclose statements taken from the next two
1 witnesses schedule to appear at this moment. That might change over the
2 days to come. I would to -- because you're asked, as a matter of fact,
3 for -- upon a very practical basis to -- to delay the testimony of the
4 first two witnesses until the 21st of June rather than to hear their
5 testimony starting on the 16th of June, and the Chamber has asked for the
6 parties' views on this request. The Prosecution was neutral, and the
7 Simatovic Defence has not responded. And then on the 8th of June, the
8 Chamber denied the request, and we have considered that court time should
9 be used to the fullest extent possible.
10 You then informed us that you had other difficulties as well, and
11 we invited you to explore the possibility of if you couldn't present
12 these first -- or the first two witnesses for the reasons you've given,
13 whether you could present any other witnesses. Now, you then informed us
14 that you could not produce any witness for this Thursday, the 16th of
15 June, and you proposed to make up for lost time next week.
16 The Chamber considered it of no use to force you into this
17 Thursday. That would not serve any purpose, but nevertheless, when could
18 you realistically present your first witness, because that's whether the
19 initial two scheduled or any other witness, and I'm now thinking in terms
20 of what would happen then not this Thursday but next week.
21 MR. JORDASH: First of all, could I apologise for effectively not
22 being able to follow Your Honour's order.
23 JUDGE ORIE: Could I ask you one question in this respect. When
24 were the statements taken from the two witnesses that were first on your
25 list to be called?
1 MR. JORDASH: The exact dates when they were completed I don't
2 know off the top of my head, but they were finished I think in -- from
3 the witness's satisfaction last week. The statements have been taken
4 over a period of weeks starting, I think -- three to four months ago I
5 think I started interviewing the first two witnesses, and then obviously
6 there was a process and the witness took away the statement and looked at
7 them, and eventually last week they were completed.
8 JUDGE ORIE: At the same time, I do understand that the request
9 for consent by the governments to use the statements is pending already
10 for four weeks --
11 MR. JORDASH: Actually --
12 JUDGE ORIE: -- which means that you can make such an application
13 even without knowing yet the final -- the content of the statement as
14 it's finally is put on paper, because that I take it from your
15 information that the request for consent was filed or submitted four
16 weeks ago.
17 MR. JORDASH: Four weeks, as it turned out, was a slight
18 exaggeration on my part. I found the exact date, which was the 24th of
19 May, but our investigator had contacted the National Council a month
20 before that, and the National Council told us that permission would be
21 granted within two weeks.
22 JUDGE ORIE: Even if the statement was not yet completed, they
23 would do that -- [overlapping speakers]
24 MR. JORDASH: Yes. We were asked to send a list of topics that
25 we wanted the witnesses to testify about and that's what we've done.
1 They haven't seen the statement and they haven't requested to see the
2 statement. They simply wanted a list of subjects which --
3 JUDGE ORIE: Which raises even more questions about the role of
4 this kind of consent in -- but I'm not intending at this moment to engage
5 in a debate on -- on that matter or to invite the parties to have a
6 debate on that. Let's -- let's look at reality at this moment; that is
7 that, at this moment, the consent has not been given yet. I do
8 understand that a possibility for tomorrow?
9 MR. JORDASH: We were assured it would -- well, I won't say
10 "would," but it was likely to happen tomorrow.
11 JUDGE ORIE: Yes, okay.
12 MR. JORDASH: Sorry, not tomorrow, Thursday.
13 JUDGE ORIE: Yes, yes. I am talking about Thursday, but I was
14 not very precise.
15 Could you tell us, do you have the two scenarios, the one in case
16 you would get a consent and the other scenario in case the consent would
17 not be given, because that's what we are interested in, is what will
18 happen next week in either of the two scenarios.
19 MR. JORDASH: We will do our best to make sure that there's no
20 further delay, and if permission isn't granted on Thursday, and we,
21 expect it will be, then we will get a witness somehow, if we can, to
22 court on Tuesday.
23 JUDGE ORIE: Yes. And at what moment in time do you then think
24 you could disclose the -- well, either of the statements taken and the
25 supporting material to the extent not yet in the possession of the
1 Prosecution? Would that be on that same Thursday.
2 MR. JORDASH: Well, all the supporting -- if -- if supporting
3 material are exhibits, then all of the exhibits are in the possession of
4 the Prosecution.
5 JUDGE ORIE: Yes, but do they know what it is?
6 MR. JORDASH: Yes. They've had that since last week, an
7 indication of which exhibits will be --
8 JUDGE ORIE: Used with those --
9 MR. JORDASH: Used with -- well, with the first witness we've got
11 JUDGE ORIE: Okay.
12 MR. JORDASH: And the second witness I think they'll be receiving
13 today or tomorrow the next list.
14 JUDGE ORIE: And the statements taken from those witness would be
15 available --
16 MR. JORDASH: On Thursday we can file immediate Rule
17 92 ter motions.
18 JUDGE ORIE: Yes. And you have no alternative scenario in case
19 your expectation would turn out to be --
20 MR. JORDASH: Well --
21 JUDGE ORIE: Not in accordance with --
22 MR. JORDASH: Not as yet worked out, but we will make sure we
23 have one.
24 JUDGE ORIE: Yes.
25 Mr. -- yes, Ms. Marcus. I see that you're on your feet. I would
1 like -- first of all, you have now received, I take it, relevant
2 information. I don't know whether you were aware of it yet or not. At
3 the same time, we -- there is a 9th of June urgent motion for compliance.
4 The Stanisic Defence has responded to that, and the Prosecution has, I
5 think today, asked whether they could reply to that response.
6 The Chamber has considered that, and if you would like to reply,
7 you have an opportunity to do it now.
8 MS. MARCUS: Thank you very much, Your Honour. We have - as Your
9 Honour has pointed out - we have made our submissions in -- in writing in
10 a leave to reply. I don't see any need in detail to go into it again,
11 except with respect to -- to clarify that the notice that we have --
12 we've been in very regular e-mail contact with the Stanisic Defence team.
13 With respect to the notice that they've given us of the documents
14 for the first witness, there were, as far as we could tell, and there has
15 been some conflicting information, that's one of the problems with all of
16 this, is that some of the e-mails don't match, the spreadsheets don't
17 match, and it's very, very time consuming to try to sort through the
18 variety of information that we've received.
19 We've received notice of 119 potential exhibits, approximately.
20 There are a serious numbers of exhibits not translated into English
21 noticed for the first witness. If I am -- if my numbers are accurate --
22 and we did receive an e-mail this morning with a few translations, we
23 have not been able to sit down and associate them. One of the problems
24 is that the information is provide to us in a variety of means. Some is
25 uploaded into e-court, some attached to an e-mail, some is in an Excel
1 spreadsheet, et cetera. So we are missing a large number of translations
2 for those documents. We also find that approximately 36 of those 119
3 documents are redacted, and we haven't seen any motions seeking the
4 unredacted versions. So we do have a number -- a number of concerns.
5 Our last estimate of the untranslated pages is 400 -- 256 pages
6 amongst those documents that have no translation. Now, as I said, we did
7 get an e-mail this morning with a few documents attached. Perhaps some
8 of those translations do address that, but we have not had the
9 opportunity to cross-reference it. So the -- the Defence provided an
10 updated revised notification on the 10th of June that attempts to correct
11 their earlier one, but some of the information in that didn't cross-check
12 either. We've spent enormous resources trying to sort through the
13 conflicting information we've received.
14 All -- all told, in spite of perhaps best efforts on their part,
15 I'm afraid that we -- we are not clear exactly on what exhibits they plan
16 to tender, what the status is of the untranslated exhibits, and that is
17 with respect to the first witness and the witnesses thereafter and, more
18 broadly, with respect to the Defence 65 ter exhibit list.
19 With -- with respect to any statements, we have not received any
20 statements of any witnesses for the Stanisic team, whether a statement be
21 a formal signed statement or an unsigned statement. We've made our
22 position clear: That our understanding of the disclosure obligations
23 under -- Rule 67(A)(2) obliges the Defence to provide us with those
24 statements and that any waiver that may need to be obtained is quite
25 apart from a disclosure obligation to the Prosecution. We've made that
1 also clear in our written submissions that that's our position.
2 And finally, Your Honours, I would point out that to the extent
3 that any of the noticed exhibits are meant to be associated to any
4 statement, we certainly have not been -- we have not received any
5 indication that any of the noticed exhibits are associated, nor as I have
6 said have we received this statement to which they would supposedly be
8 Thank you.
9 JUDGE ORIE: This was a reply, sur-replay for you, Mr. Jordash,
10 and I'm wondering how you work on the basis of untranslated documents for
12 MR. JORDASH: Well, Your Honour, what the Prosecution have just
13 said is just not accurate.
14 JUDGE ORIE: Okay.
15 MR. JORDASH: Firstly, and this was copied to your legal officers
16 on Monday, we supplied a list of the exhibits that will be tendered with
17 this witness to the Prosecution. It is clear - I've got it in front of
18 me - there were pages which were not translated. They can be divided
19 into two. One were pages which were not translated because they're parts
20 of Rules and we don't seek to rely upon that section of the Rules, a
21 practice adopted and used by the Prosecution on countless exhibits.
22 Secondly, there were outstanding translations. We can't do much about
23 that but keep pressing the Translation Unit.
24 We have supplied this morning the remaining translation but two.
25 They've been clearly marked and indicated to the Prosecution, and it is
1 not correct that there is or should be any confusion. We agree that when
2 we filed the list there were things which were unclear. Our Case Manager
3 has worked night and day to resolve those things. However, the amount of
4 confusion is exaggerated.
5 JUDGE ORIE: Okay. You say the problem is not as big as --
6 MR. JORDASH: The problem doesn't exist any longer.
7 JUDGE ORIE: I take it that a cup of tea together with Ms. Marcus
8 will certainly help you out, and then we'll hear from you who starts
9 crying at the end and who is laughing at the end. I hope you're both
10 laughing at this moment. You are doing, as a matter of fact.
11 Redactions was another matter.
12 MR. JORDASH: The redactions is a problem and we acknowledge
13 that. It's a problem of -- again, it's not of our making. The National
14 Council have been approached by us and they've responded to us and having
15 spoken to BIA, the successor of the DB, and their position appears to be
16 that they want the DB documents to be used in a closed session and they
17 refuse to unredact the sections of the report on the basis that they say
18 the concealed material has nothing to do with this case. We received the
19 letter two weeks ago, and I've just come into possession of the letter.
20 We can -- it's not been translated into English as yet. We can -- it has
21 been sent to the translation unit and we can provide it to my learned
22 friends and Your Honours as soon as we receive a translation.
23 The position would seem to be that either the Serbian government
24 applies for protected measures for those redacted sections, or I think
25 the position of the Prosecution is that we should apply to Your Honours
1 to have that material unredacted. So --
2 JUDGE ORIE: And then that would mean that you make an
3 application for an order to the Serbian government to provide unredacted
4 copies to the Defence.
5 MR. JORDASH: Yes. I think that's what the Prosecution's
6 preference is.
7 JUDGE ORIE: I see Ms. Marcus is nodding yes.
8 MR. JORDASH: Well, the other alternative is that the
9 Prosecution, if they want to see that material, they apply for an order
10 for an unredaction because we don't seek to rely upon what's under -- we
11 understand the Prosecution's concern and we would have the same concerns,
12 but we don't seek to rely upon the material which is hidden. It's not
13 part of our case and we're not concerned with what's under there.
14 JUDGE ORIE: Yes, you say the wish to know more about the context
15 is the Prosecution's wish rather than yours at this moment, and it
16 doesn't make you feel any uncertain on those circumstances.
17 MR. JORDASH: Well, I mean, I'm always nervous about things which
18 are hidden, but at the same time, I'm -- given that we want to move
19 forward, I'm happy to proceed without.
20 JUDGE ORIE: Ms. Marcus.
21 MS. MARCUS: Your Honour, as Mr. Jordash has pointed out, we
22 strenuously object to documents with redactions being used in court let
23 alone tendered. Those are documents that are put forward by the Stanisic
24 Defence. They are their documents, their exhibits. It's our view that
25 any document that they seek to use in court or put to a witness is
1 incomplete without knowing what's underneath the redactions which could
2 clearly impact very seriously on -- on the evidence, and therefore we --
3 we are -- we are -- we are sticking to our submission quite strongly that
4 we would oppose even the using of -- the use of any of those documents in
5 redacted form.
6 JUDGE ORIE: And you would say in that case it would be incumbent
7 upon the Stanisic Defence to seek the unredaction of those portions
8 because you would oppose admission into evidence of the redacted
10 MS. MARCUS: Yes, Your Honour.
11 JUDGE ORIE: So we have three ways now to get out of the problem.
12 None of these would give us a result by tomorrow.
13 MR. JORDASH: No. Our preference would be so we don't lose time,
14 I mean to say -- again, it's not -- it's not a novel situation. We were,
15 on several occasions, from our view hampered or potentially hampered by
16 things which we didn't know, translations which had not been completed
17 and so on. And it's the way it sometimes has to work until these things
18 are resolved.
19 JUDGE ORIE: Well, the parties have now made further submissions,
20 and I linked them to the 9th of June urgent motion, but it also takes
21 it's place in the scheduling of the case.
22 I think we first should take a break now and resume at 5 minutes
23 past 4.00. Is 30 minutes enough or a cup of tea? Yes, okay. Then we
24 resume at five minutes past 4.00.
25 --- Recess taken at 3.35 p.m.
1 --- On resuming at 4.21 p.m.
2 JUDGE ORIE: The Chamber apologises for resuming so late. The
3 reason was that we wanted to thoroughly discuss the submissions made by
4 the parties in relation to the determinations we have to make under
5 Rule 73 ter, and I will inform you about the outcome.
6 The Chamber allows 33 witnesses for the Stanisic Defence and 20
7 witnesses for the Simatovic Defence.
8 To the extent, Mr. Bakrac, you alluded to another 15 witnesses,
9 you would need permission for that, because we are -- at this moment we
10 accept your request for 20 witnesses. Therefore, any further witnesses
11 you have to file a motion and ask for additional witnesses to put on your
12 witness list.
13 As far as the number of hours is concerned, after having
14 deliberated on all the arguments made, the Chamber has decided that both
15 parties would have 70 hours for their case presentation. The Chamber
16 adds to this that the Chamber will closely monitor and might even halfway
17 or at one-third further evaluate on how the time is used. If, for
18 example, you would have listed a witness for three hours and if really
19 important, meaningful, probative, relevant evidence is presented and you
20 would take four hours, then of course the Chamber could consider if that
21 this would be a persistent pattern, to further hear any submissions on
22 this same matter, but the Chamber has not gained the impression at this
23 moment that all possibilities to improve the efficiency and to improve
24 the performance in terms of time have been fully explored yet.
25 The reasons for this decision will be given in writing. The
1 Chamber wants to clearly explain to the parties why it decided as it did.
2 Then we move on. The next item is about the Chamber's intention
3 to move some hearings of the week to the mornings. The parties should
4 consult the courtroom schedule for any specific days.
5 Considering the present state of Mr. Stanisic's health and the
6 modalities of these proceedings, the Chamber do not expect that it would
7 cause any problems. The parties were informed of this on the 30th of
8 May, 2011, and the Chamber would like to hear if there are any concerns
9 in respect of this, moving some of the hearings from the afternoon to the
10 morning. And, of course, I'm specifically looking at you, Mr. Jordash.
11 MR. JORDASH: The -- the only concern that comes to me is that I
12 know Mr. Stanisic's health is -- is often less robust in the morning. I
13 think it's usual that I would if I'm going in the morning to see him go
14 after 10.00. However, I don't think that's a bar to mornings at all, but
15 I would just ask that if there are changes or sudden fixtures in the
16 morning that that, if at all possible, could be avoided and we could be
17 given notice and I could just ensure that Mr. Stanisic's health is robust
18 enough and I could make the appropriate application if it's not.
19 JUDGE ORIE: Yes. You could -- you can look at the court
20 schedule for -- because we'll put it on the -- on the court schedule
21 clearly what is morning, what's afternoon. There are a few advantages of
22 the morning. I'll not set them out in detail, but you could expect also
23 that usually that the first session in the week, which will be most
24 likely Tuesday or sometime perhaps Monday, would usually be the afternoon
25 session, and then later in the week we would move to morning sessions.
1 Is there any other observation? Other parties are -- may not be
2 affected that directly by this.
3 Now, before I move to the next subject, I return to one of the
4 previous ones.
5 Mr. Jordash, you said that for next week, and you expected you
6 would be able to call the first witness on Tuesday and that you'd be
7 willing to seek compensation for a lost day this week. If you would
8 start on Tuesday, that would mean Friday. That would be Friday, the 24th
9 of June then.
10 MR. JORDASH: Your Honour, yes.
11 JUDGE ORIE: Yes. And that -- let me just see whether -- we have
12 to consider whether that would be morning or afternoon. There's -- let
13 me just check one thing. That would be most likely in the morning as I
14 see it now. Yes. That would be -- yes. Most likely in the morning, but
15 let me keep that open for a second. But we'd use that Friday then for
17 MR. JORDASH: Your Honour, yes.
18 JUDGE ORIE: Yes. Which brings me to my next agenda item, which
19 is that -- and the parties may well be aware of that, that the Chamber
20 has considered moving to four sitting days per week. We have done
21 that -- considered that in the past.
22 Now, as matters stand now, the schedule is still for three
23 sitting days per week in accordance with the operative modalities of this
24 trial, but the Chamber nevertheless intends to have a trial period of
25 four sitting days per week for the fourth -- the first and the third week
1 of July, 2011. Again, this is not a definitive change to four
2 sittings -- sitting days per week, and we intend to proceed very
3 cautiously in this matter, but the Chamber would like to give it a try
4 for two weeks in July and then, but for other reasons, next week to
5 compensate for any lost days in this week. And we would have on our mind
6 to sit on the 4th of July in the afternoon. That's a Monday. And also
7 to sit on the 18th of July, also a Monday. That would, therefore, be a
8 Monday, Tuesday, Wednesday, and Thursday week, a four-days sitting week.
9 We'll evaluate then what the results are.
10 Are there any comments on this intent?
11 MR. JORDASH: Your Honour, I would wish to express my concern on
12 that proposal. Whilst I would submit that the medical evidence does not
13 in any way bar an occasional extra day, which is why I felt comfortable
14 proposing that we make up time next week, the proposal Your Honours have
15 put forward effectively turns the next three or four weeks into four
16 sitting days in -- in the majority of weeks, and in our respectful
17 submission, the medical evidence doesn't support -- or suggest that by
18 pushing Mr. Stanisic too hard his health suffers, and I certainly have
19 observed that when we moved to four days a week during the Prosecution
20 case. So it's difficult.
21 I'm not asking for relief at this time, but I can foresee a
22 problem if we move to four days a week and its too regular.
23 JUDGE ORIE: Let me --
24 MR. JORDASH: May I just speak to Mr. Stanisic, please.
25 JUDGE ORIE: Yes. Please -- please do so.
1 [Defence counsel and accused confer]
2 MR. JORDASH: Mr. Stanisic would like to address Your Honours on
3 the subject of his health. I hadn't anticipated that, but he makes the
4 request, and I make that on his behalf.
5 JUDGE ORIE: Yes.
6 [Trial Chamber confers]
7 JUDGE ORIE: Mr. Stanisic may address the Chamber, but before I
8 give him an opportunity to do so, Mr. Jordash, I'm usually very carefully
9 listening to your words. This week we have two days. Next week we have
10 four days. The week after that we would have three days. Let me just
11 see. Let me just have my agenda with me.
12 Yes. Next week we would add the 24th, isn't it? Which would
13 make this week two days, next week four days, the week after that three
14 days, the week after that four days, the week after that three days, and
15 the week after that four days, isn't it?
16 MR. JORDASH: Yes. I think and --
17 JUDGE ORIE: How you come to a majority of the weeks with four
18 days is -- for me it's exactly half, not a majority, and this week is
19 only two-days week.
20 MR. JORDASH: Your Honour is right, it's not a majority, but it
21 is --
22 JUDGE ORIE: Yes, it's 50 per cent.
23 MR. JORDASH: Yes.
24 JUDGE ORIE: Then we have ignored the fact that one of the
25 three-day weeks would be a two-day week. That is this week. Two, four,
1 three, four, three, four.
2 MR. JORDASH: Well, Your Honour, I'm not sure that it -- and I'm
3 sure that Your Honour appreciates that it's not a case of pure
5 JUDGE ORIE: I appreciate that, but if you use words like a
6 "majority," I used to understand that, and I had some difficulties
7 understanding where the majority came from in this respect.
8 MR. JORDASH: Your Honour's right.
9 JUDGE ORIE: All right. Let's leave it to that and let's listen
10 to Mr. Stanisic, because that might be of the same importance.
11 Mr. Stanisic, if you wish to stand, fine, if you would prefer to
12 remain seated, fine as well. Just do as you wish.
13 THE ACCUSED STANISIC: [Interpretation] Thank you, Your Honour,
14 for allowing me to address you. The reason for me asking to address you
15 lies in the following fact: Two weeks my physicians at Bronovo were at a
16 dead regarding my further treatment. They again suggested to use the
17 cytostatics to address my original disease. Preliminary I accepted that
18 as I usually do when physicians make their proposals.
19 However, upon my return to the hospital -- or, rather, to the
20 Detention Unit, the physicians told me I had already been prescribed that
21 treatment in Belgrade without any result. Therefore, I must tell you
22 that you most likely did not receive all the information as to the extent
23 of problems with my further treatment. We only have to see what any
24 further treatment may be. If we decide to continue with the cytostatics,
25 these are very difficult -- that's difficult medication, and during the
1 last time they were applied I was on the verge of death. I had formerly
2 accepted all medication, but if the physicians decide to introduce the
3 same treatment again, I can already tell you that I will have great
4 difficulty dealing with it. I have no idea how I'll be able to react and
5 deal with it. This is concerning my original status without any further
6 complication such as thrombosis in both legs and kidney problems which
7 came as a result of that.
8 I simply wanted to offer all available information to you so that
9 you have it all at your disposal. I place this as a kind of hedge
10 despite my wish to assist the speedy -- speediness of these proceedings.
11 I am investing maximum effort to try to assist you in expediting the
13 JUDGE ORIE: Thank you, Mr. Stanisic. First of all, the Chamber
14 appreciates your co-operative attitude in relation to these matters. You
15 assist us in expediting the trial. We are also aiming at expediting the
16 trial in your own interests. It's one of the fundamental rights for an
17 accused. It goes without saying that the Chamber carefully reads the
18 weekly reports and any additional reports we receive. If there's any
19 specific information which is not contained in the weekly reports, then
20 of course the Chamber would certainly insist on being as complete as
21 possible in that respect, and hearing with that we might not have been
22 provided with the full information, of course, is of some concern to us
23 and we will give that some follow-up.
24 If a change in medication or any other relevant aspect of the
25 treatment would -- would not favour our plans, then of course we'll
1 carefully consider whether we should, nevertheless, do this test or not.
2 But of course, it's difficult to say anything about not having been
3 provided with the information. And do not hesitate either to request to
4 directly address the Chamber on these matters, or ask Mr. Jordash's
5 assistance in dealing with these matters.
6 What we're trying to do is find a fair balance between fairly
7 considering your health situation and, at the same time, to provide a
8 trial which is expeditious not only for the Tribunal purposes but also
9 because it's a fundamental right for you.
10 Thank you for that.
11 Mr. Bakrac.
12 MR. BAKRAC: [Interpretation] Your Honour, if I understood
13 correctly, and I hope I did not interrupt you, I believed you were
14 complete in your comments to what Mr. Stanisic said.
15 As regards morning or afternoon sessions, our Defence did not
16 have a position. It is all the same to us when we sit, and, of course,
17 we take seriously into account what Mr. Jordash said as to Mr. Stanisic's
18 ability to follow the proceedings and his condition being better in the
19 afternoon. We do not object to that.
20 As for -- as regards the number of sitting days, we realise that
21 the basic problem of this trial is the health situation of Mr. Stanisic.
22 In view of that, I'd like to ask you to consider another possibility. A
23 moment ago I told you that our Defence is intensely working on the
24 completion of our investigation. Why do we want that? So that we could
25 forward all the material to the Prosecution depending -- pending your
1 approval to supplement our 65 ter list. We want to do that so as to
2 allow the Prosecution enough time to prepare for our Defence case. That
3 is why we would prefer if the trial period came later, following the
4 summer recess, so that we could use the time before the recess to
5 conclude our investigation to the extent possible, thus enabling the
6 Prosecutor to get acquainted with all our evidence and material. That is
7 why it would be useful for us to remain with this sitting schedule until
8 the summer break. It would mean a lot to us. It would mean that each
9 week we would have an extra day that we could use towards completing our
11 Thank you very much.
12 JUDGE ORIE: Each week would mean in this respect two days
13 altogether. Yes. Well, it's -- it's -- it's saying the same --
14 MR. BAKRAC: [Interpretation] You are correct, Your Honour.
15 JUDGE ORIE: -- in different words. Each week another day or two
16 days until the summer recess, but the -- I would say the psychological
17 meaning of the two expressions is slightly different.
18 MR. BAKRAC: [Interpretation] I didn't do my math, it seems. You
19 are quite correct, Your Honour. It is actually three or four days. In
20 any case, in the situation we are in, those three or four days would mean
21 a lot. You are fully correct. I did say every week, and yet I failed to
22 notice that you said every other week. I apologise.
23 JUDGE ORIE: Yes. And apart from that, three or four days would
24 be two or three days, but let's get rid of the mathematics.
25 Prosecution, any comment on --
1 MR. GROOME: No, Your Honour.
2 JUDGE ORIE: Then we'll consider the submissions made by
3 Mr. Jordash, Mr. Stanisic, and Mr. Bakrac, and we will inform the parties
5 Next on my agenda, translation difficulties. We've heard already
6 some about it. I do understand that there was a common effort and with
7 some support of Chambers staff to see whether translations could be
8 prioritised and could be -- could be produced as quickly as possible. We
9 also understood that quite some progress was made, but if there's
10 anything apart from what has been said before that should be added, then
11 the parties have an opportunity to do so.
12 Mr. Jordash, you're on your feet.
13 MR. JORDASH: Yes. Some progress has been made, but not -- and I
14 speak on behalf of the Prosecution and the Defence, not sufficient for
15 either party to feel terribly comfortable with the amount outstanding.
16 We've agreed with the Prosecution that we will provide the
17 Prosecution with a greater notice concerning which exhibits we will use
18 with the forthcoming witnesses, and we will send them a list next week to
19 cover the first four witnesses. It won't be precise, but it will be, I
20 hope, of assistance, and then we will sit down with the Prosecution next
21 week to work out what translations are outstanding, whether the amount
22 outstanding is going to be a problem for either of us, and if it's a
23 problem, it may be that we turn to Your Honours to seek relief by way of
24 a joint motion.
25 JUDGE ORIE: Yes. We will see with these matters -- how these
1 matters develop. You may be aware that the Chamber has always tried to
2 give its full support to -- to prioritise translations for this case. I
3 also understand that CLSS has -- is really trying to do its utmost best,
4 but where it all ends and where we face difficulties which are difficult
5 to handle and to manage is -- is still to be seen. I'd rather not
6 speculate too much about it and, rather, show full awareness of the
7 problems that may arise in the near future as already explained also by
8 Ms. Marcus.
9 At the same time, to go into details at this moment seems not to
10 be very useful. It could be that some documents untranslated that for
11 other reasons you would decide not to use them, which would perhaps
12 result in you not asking for a delay of cross-examination on those
14 I'm not confident that we will resolve all the problems, but we
15 also -- we should not try to cross bridges until we come to them. We see
16 that in our road there are a few bridges nearby. I'm aware of that.
17 Let's see how the situation is as we have proceeded.
18 Mr. Jordash, you would like to --
19 MR. JORDASH: Can I just make one point.
20 JUDGE ORIE: Yes.
21 MR. JORDASH: We share the Prosecution's concern. It's
22 frustrating for us, and we feel slight -- somewhat hampered by the
23 volume -- I certainly feel hampered because I can't read some of the
24 exhibits and I have to have a legal assistant take me through that
25 exhibit, and would I prefer to have the documents translated. So it's --
1 it's a problem which I -- we've thought about a lot, and we've thought
2 very seriously coming to Your Honours for ourselves. So we are keeping
3 that in mind, and we are very close to doing that, because we -- we don't
4 want to advance a case with exhibits on a list that presenting counsel
5 hasn't had the opportunity to read.
6 JUDGE ORIE: Yes. You'd said if you can't cross the bridge, what
7 about the Prosecution? They certainly would not, but the first thing is
8 that you have to cross the bridge as well.
9 MR. JORDASH: I'd like to cross before they do.
10 JUDGE ORIE: Yes. Yes. I understand that.
11 Ms. Marcus.
12 MS. MARCUS: Yes, Your Honour just to point out one thing. I
13 agree with what Mr. Jordash said. Just to give the Chamber a sense of
14 the magnitude of the problem: As of this morning, we counted on a
15 spreadsheet the number of outstanding translations into B/C/S and that
16 totals 1.108 documents out of approximately 4.000 on their list. So
17 it -- regardless of how we try to get across the bridges, I think we
18 do -- we do face very serious translation issues. I just wanted to put
19 that -- that number on the record, Your Honour.
20 JUDGE ORIE: Yes. It now is on the record.
21 Now, you are referring to outstanding translations into B/C/S, I
22 take it, from English?
23 MS. MARCUS: Yes, Your Honour.
24 JUDGE ORIE: Yes. Which means that at least Mr. Jordash can read
25 those documents, but --
1 MS. MARCUS: I'm sorry. I'm sorry. Into English from B/C/S.
2 Please forgive me.
3 JUDGE ORIE: Yes. You see, I really trying to carefully listen
4 to whatever your submissions you make. Okay. Then all these remarks I
5 had on my mind, I'll forget about them.
6 It's clear it's for the Chamber to take care that we all cross
7 the river without getting wet feet, and we'll pay attention to that.
8 The next item I have on my list is -- and I think we can deal
9 with them in open session, is the request for protective measures --
10 Serbia's request for protective measures, 26 of November, 2010 and the
11 8th of April, 2011.
12 These were documents that were provided to you, Mr. Jordash, I
13 think, in redacted form, and you meanwhile received -- you received
14 instructions that you should deal with those -- with those documents as
15 confidential documents; that is, that you would have to move into private
16 session -- at least request to the Chamber to move into private session
17 when the documents are used in court, and if you want to tender them for
18 admission, that you should do -- do so provisionally under seal.
19 Now, we understood that -- initially we understood that you had
20 been provided only with redacted copies of those documents but that you
21 would be provided with unredacted copies and that you meanwhile received
22 those. Is that correctly understood?
23 MR. JORDASH: I don't think that is correctly understood. I --
24 I'm not aware of the National Council disclosing -- sorry, not disclosing
25 but corresponding with us and informing us that BIA has reversed their
1 position on any of the redactions.
2 JUDGE ORIE: I think as a matter of fact, but perhaps we should
3 check that, that in the -- the motion which was filed on the 26th of
4 November, 2010, that the Republic of Serbia had specified that they would
5 provide the Stanisic Defence with unredacted copies without delay if the
6 use of unredacted documents is necessary for the proceedings. And that's
7 what is found in their --
8 MR. JORDASH: And then they've -- they communicated with us, and
9 I'll have to check the -- whether they are discussing the same document,
10 but the latest communication we received from the National Council was
11 that none of the redactions are, in fact, relevant to our case.
12 JUDGE ORIE: That's still that same problem. We're talking about
13 the same documents at this moment.
14 MR. JORDASH: I think so, and it's -- it's National Council -- or
15 I should say BIA via the National Council who are making the assessment
16 of what they say is relevant to our case. So it's somewhat --
17 JUDGE ORIE: We'll check whether -- whether we really find, and I
18 don't have that motion here at this very moment, that you'd be provided
19 with unredacted copies without delay if the use of unredacted documents
20 is necessary for the proceedings, and, of course, what is necessary for
21 the proceedings is to be judged by the parties and by the Chamber. And
22 if the Prosecution opposes admission of any document, if there are
23 redactions, then of course it's in your own interest as well.
24 We'll further look at this and we have to pay specific attention
25 to that.
1 Let me see. And we also should be aware that, of course,
2 protective measures are primarily to keep away information from the
3 public rather than from the parties or from the Chamber. And if there
4 are any specific concerns there, of course, there are procedures to deal
5 with those.
6 MR. JORDASH: Well -- well, Your Honour, I would completely
7 agree. I mean, paragraph 3 of the 24 of September 2010 Serbian request
8 seems to be somewhat unhelpful or in light of the letter we received
9 recently whereby the Republic of Serbia say, "We are maintaining
10 redactions," then it may be that the right approach is for me to right
11 now simply say I invite the Chamber to order the National Council to
12 unredact the documents so that we can make a decision rather than the
13 decision resting in their hands.
14 JUDGE ORIE: Yes. I'm hesitant to do this, but in order to have
15 a clear situation, might it not be better to make such an application in
16 writing? I know that it's an additional burden for you, but
17 nevertheless, in these sensitive matters it might be better to have a
18 short and clear history.
19 MR. JORDASH: The only problem I can foresee is that we cannot,
20 of course -- it's slightly circular in that we can't say it is relevant,
21 because we don't know what's there. We can only say it's relevant
22 inasmuch as it's part of a document we want to use.
23 JUDGE ORIE: What you can write down, of course, is from a point
24 of view of fair proceedings that it should not be left -- the relevance
25 of certain materials should not be left in the hands of a party that
1 provides that information where there's a general duty to provide
2 information, either documentary evidence or witness testimony. And the
3 mere fact that you do not know and that the Chamber doesn't know means
4 that we are all a bit handicapped. And perhaps there are ways if there
5 are specific concerns, not relevance, but other concerns covered by
6 Rule 54 bis, then of course there are solutions for that as well, but I
7 do not see that that has been invoked at this moment. I do understand
8 that in the letter -- you'll find the letter, which of course we haven't
9 seen, and if you make a written submission you could refer to that
10 letter, and of course otherwise it would just be what you tell us now and
11 I have no reason not to believe it, but it's a bad basis for us to issue
12 an order upon.
13 MR. JORDASH: I'm wondering, Your Honour, whether the right
14 approach might be that we -- we go back to the National Council and say,
15 "Well, why do you arrive at that position?" Or, "What -- can you explain
16 what it is is the basis for your view that it should remain private, "or
17 else we are perhaps not quite understanding why they've may the decision
18 other than they'd rather not disclose it.
19 JUDGE ORIE: Yes. I think, as a matter of fact, that what would
20 be preferable is a road which leads to a resolution as quickly as
21 possible. That's -- and, of course, the Chamber at this moment,
22 unless -- if the parties would reach a position where they say, "We can't
23 take any further initiative," then of course you have to address the
24 Chamber. Don't wait too long to address the Chamber. If you can resolve
25 the matters by yourself, fine, but don't try to do that so that we are
1 running out of time in July, September, October, November in discussions.
2 Let's get to the core of the problem as quickly as possible, and if one
3 first initial step you think would help, then take that step and then
4 address it.
5 MR. JORDASH: To be honest, not to take up too much time, the --
6 our view is that the best approach is for the Prosecution to do it for
7 this reason: that we are having trouble with the National Council. We
8 have sent a number of requests over the months and the years, and we do
9 and have -- sorry, we have arrived at the view that they prefer to
10 co-operate with the Prosecution.
11 Now, I think if the Prosecution were to either apply or we do a
12 joint application - we're not against that - we might get more from such
13 an approach.
14 JUDGE ORIE: Yes. A joint application, of course, would
15 underline the importance of receiving the appropriate material.
16 Ms. Marcus, any observation.
17 MS. MARCUS: Yes, Your Honour. I would just -- we have
18 nothing -- we're not opposed to, I think, a joint submission on the
19 issue. If the Stanisic Defence has the correspondence, so as soon as
20 they put it together into a motion, we're perfectly happy to -- to agree
21 to that. They can send us a draft and we'll be happy to do that. I
22 would note it is quite a matter of some urgency due to the fact that
23 there are 36 redacted documents on the list for the first witness.
24 JUDGE ORIE: That also explains why I said let's -- let's try to
25 find a way which quickest leads to -- to a result.
1 MS. MARCUS: Yes, Your Honour.
2 JUDGE ORIE: At the same time, we cannot exclude under all
3 circumstances that you might not be able to finish the cross-examination
4 or that you'd have to reserve the right to recall a witness for further
5 cross-examination. That's -- it has happened before in this Tribunal.
6 It has happened before in this Chamber -- before this Chamber. That's
7 reality. At the same time to wait and first resolve everything before we
8 proceed would have also some disadvantages, to say the least.
9 MS. MARCUS: Yes, Your Honour. In fact, we have a pending
10 application for the delay of the cross-examination of the first witness
11 for that reason and a number of others.
12 JUDGE ORIE: I'm aware of that, and you may also be aware that
13 the Chamber often prefer to see how far we can come, and then to consider
14 whether there be any need for a recall for further cross-examination, but
15 we will consider that. It also depends on what happens Thursday.
16 Then next item also deals with protective measures. On the 3rd
17 of November in 2009, the Chamber partially granted a request for Serbia
18 for protective measures ordering that the names of active BIA members on
19 certain documents provided by Serbia should receive protective measures,
20 and in order to give effect to this order, the Chamber ordered Serbia to
21 give a list of the active BIA members appearing on the documents covered
22 by the request and to be given to the Prosecution.
23 On the 8th of December, 2009, the Prosecution confirmed that it
24 had received such a list. The Prosecution is hereby invited to provide
25 the Chamber with a copy of this list, and the Chamber will take care that
1 the Republic of Serbia is informed about this request to the Prosecution
2 to avoid any misunderstandings and to ensure full transparency.
3 MR. GROOME: We will do that, Your Honour.
4 JUDGE ORIE: Thank you. I move to my next item, which is about,
5 if I could say so, the Theunens documents.
6 On the 1st of April of this year, the Chamber admitted a number
7 of documents into evidence, namely P1049, P1065, P1069, P1159, P1163,
8 P1181, and P1412. They related to the testimony of the witness Theunens,
9 and the documents were admitted on the condition that revised
10 translations were provided within 20 days of rendering of that decision.
11 The Prosecution now provided translations, but most of the
12 requested translations were received after the 20-day deadline. More
13 specifically, they were received on the 12th of May, 2011. However, the
14 Chamber accepts this late submission and thereby affirms the admission
15 decision and requests the Registry to make the necessary replacement in
17 The next item on my agenda is the slides used during the Rule
18 98 bis submissions.
19 The Prosecution has used three documents which were subsequently
20 marked for identification as P2973 up to and include P2975. These were
21 parts of the Prosecution submission, and they do not qualify in
22 themselves as evidence. Accordingly, the Chamber finds it more
23 appropriate to have these documents filed by the Prosecution as opposed
24 to having them added to the body of evidence in this case.
25 P2973, 74, and 75 are denied admission, and the Prosecution is
1 instructed to file these documents within ten days.
2 MS. MARCUS: We'll do that, Your Honour.
3 JUDGE ORIE: Thank you, Ms. Marcus.
4 The next item is a request which the Chamber will declare moot.
5 On the 27th of May of this year, the Chamber issued its decision on the
6 Prosecution's urgent motion for disclosure of witness details and for
7 modification of the Scheduling Order of the 1st of April 2011.
8 Prior to the decision being distributed but after it had been
9 filed with the Registry, the Prosecution's request for leave to reply was
10 distributed. As the Chamber has decided the motion, the request for
11 leave to reply is moot.
12 The next item, I'd like to put on the record that on the 7th of
13 June, 2011, the Chamber issued a confidential decision in which it
14 granted a Prosecution request for re-opening of its case. It admitted
15 one document into evidence and exclusively for the confidential character
16 of the one document admitted into evidence it was that the Chamber has
17 decided to file this decision confidentially, not to say that re-opening
18 of the case is not something the public should not know about. It's
19 exclusively the content of the document admitted into evidence which
20 caused the Chamber to make this a confidential decision.
21 I move to the next item on my agenda which is the request by
22 Mr. Karadzic access two confidential Defence materials.
23 On the 31st of May of this year, Radovan Karadzic filed a motion
24 before this Chamber requesting that the Stanisic and Simatovic Defence
25 comply with the Chamber's decision of the 16th of July 2009, almost two
1 years ago, and identify to the Registry all inter partes confidential
2 Defence exhibits and filings. On the 16th of July, 2009, the Chamber had
3 partially granted Karadzic access to such materials.
4 Mr. Jordash and Mr. Bakrac, today is the final day to respond to
5 this motion. Could you tell us -- could you tell the Chamber what your
6 positions are?
7 MR. JORDASH: May we have a little time to respond? Not a great
8 deal of time, but if we could have a couple of weeks, we would be able to
9 identify and --
10 JUDGE ORIE: What you're saying, as a matter of fact, is that
11 your response is that you would need more time to comply with the order
12 and that you're asking for that time, which is different from a response
13 to the motion. The motion would be, "It's not true. We did comply."
14 Apparently, I do understand that the Stanisic Defence admits that
15 it has not complied with the order and requests for more time to do so.
16 MR. JORDASH: We confess completely.
17 JUDGE ORIE: Yes. That's clear.
18 Mr. Bakrac, another confession or ...
19 MR. BAKRAC: [Interpretation] Your Honour, I confess. I share
20 Mr. Jordash's position. You know what the reasons were for that. We
21 were focused on preparing our own Defence, and we're going to do our very
22 best to comply and do our part of the work involved, but we also kindly
23 ask you for additional time.
24 JUDGE ORIE: How much time you think you would need? Mr. Jordash
25 asked for a couple of weeks.
1 MR. BAKRAC: [Interpretation] Well, Your Honour, we also need two
2 weeks at least for that. We don't want to be the "enfant terrible" in
3 this case, and we don't want to ask for even more time, so we'll try to
4 do what we have to do within those two weeks that Mr. Jordash had
6 JUDGE ORIE: Well, I understood a couple of weeks, perhaps even a
7 bit more than two weeks, but let's -- 12th of July. Would that be a
8 solution for -- 12th of July?
9 MR. JORDASH: Thank you, Your Honours.
10 JUDGE ORIE: Yes. Mr. Bakrac as well. Then the Stanisic and the
11 Simatovic Defence are hereby ordered to comply with the 16th of July,
12 2009 decision and inform the Chamber through a filing by the 12th of
13 July, 2011, what material you have identified so far to the Registry.
14 And, Madam Registrar, you are hereby instructed to inform
15 Mr. Karadzic of this ruling.
16 I move to my next agenda item. I'm a bit in doubt as to when to
17 take a break, because we started late. Mr. Stanisic might have been
18 waiting in this courtroom for 15 minutes for our return. I have two more
19 items on my agenda, and the last one whether there are any other matters
20 to be raised by the parties. If there's any need to take a break, we'll
21 do so.
22 Then expert reports. The Simatovic Defence has requested an
23 extension for the submission of two expert reports. The suggestion was
24 that the English versions of the report would be disclosed on the 12th of
25 August. The Prosecution apparently took no position on this proposed
1 deadline, although in that same response you expressed the concerns we
2 discussed earlier about the -- shifting the Defence case, which we have
3 sufficiently dealt with.
4 I'm asking the Stanisic Defence whether you would have any
5 problem with the Simatovic Defence filing the two reports by the 12th of
7 MR. JORDASH: No, Your Honour. We're in a similar position. We
8 expect to file our --
9 JUDGE ORIE: We'll come to your expert report soon, Mr. Jordash.
10 Now, Mr. Simatovic, we noted that in your 65 ter summaries why --
11 we do not find much on your expert, apart that one is a police expert and
12 the other one a military expert. At the same time, in your 6th of June
13 motion in which you ask for an extension of time, we find detailed
14 information about the expert report we could expect from Mr. Milosevic.
15 However, not much about the report we'll receive in relation to
16 Mr. Borojevic. We do not know much than that it's a military expert. Is
17 there anyway that you could provide additional information both on the
18 expert himself, a CV, and a short summary of what we could expect in
19 relation to his report.
20 MR. BAKRAC: [Interpretation] Your Honours, if you allow me, or if
21 you think that it would be more convenient that way, perhaps during the
22 course of today or tomorrow morning I can submit the contents, and
23 Mr. Borovic's CV in writing. If you think that is better, then I could
24 do that. If I were to supposed to speak about it now, I'd have to find
25 all the relevant material.
1 As far as the military expert is concerned, he was a joint expert
2 on the list of the previous Defence counsel.
3 JUDGE ORIE: Isn't that true that you have explained all this in
4 your 6th of June motion in which you asked for an extension of time? So
5 therefore the Chamber is familiar with what you raised there.
6 If you would kind enough to file the CV and a summary of what we
7 could expect as the subject matter of the report is concerned, well,
8 within, well, let's say, still this week, that would be appreciated.
9 MR. BAKRAC: [Interpretation] Yes, Your Honour. I shall do my
10 best to do it as soon as possible. If you would allow me just one more
12 How did we get to this estimate of the 12th of July for all --
13 or, rather, the 12th of August to have all the translations? We asked
14 our experts to finish their reports by the beginning of the summer
15 recess, the 23rd of July. We have their promises that that would -- that
16 that is indeed what they would do, and we assume that the CLSS can have
17 that translated from the 23rd of July until the 12th of August. If an
18 additional day or two is required by CLSS, please take that into account,
19 because that is the deadline that we had assumed would be doable in terms
20 of having these expert reports translated.
21 JUDGE ORIE: Yes.
22 Now, don't work too much on the basis of assumptions, apparently
23 you assume that CLSS could do the job in a month. You apparently also
24 assume that CLSS would need no holidays; whereas, most other people would
25 need some time to relax. So therefore, I would urge you not to assume
1 anything but to get in touch with CLSS and to see how realistic your
2 assumptions are.
3 I'm also saying this in view of having looked at the table of
4 contents of the Milosevic report. I could imagine that they need half a
5 year, because it's six or seven pages just listing the chapters of that
6 report. So therefore I think since the report is not yet ready, perhaps
7 executive summaries at the beginning of chapters so as to be able to work
8 already on the matter. I'm really a bit concerned if which -- about such
9 a report which seems to be so extensive that, to work on the basis of
10 assumptions, usurping more or less the holidays of CLSS, it seems to be a
11 risky exercise.
12 MR. BAKRAC: [Interpretation] Your Honour. Your Honour, if you
13 allow me, the assumption only has to do with this translation. I am
14 sorry you reminded me now of something that I had not actually mentioned.
15 Actually, Mr. Petrovic and I asked Mr. Milosevic the expert to provide
16 chapters of his report as he finishes them so that we can submit them for
17 translation; that is to say, before the final version is done. We had
18 that in mind, so we asked the expert to do that. I agree that on the
19 basis of the contents it seems enormous. However, we have firm
20 assurances from Dr. Milosevic that he can finish this by the 23rd and we
21 indeed had envisaged that possibility, namely, as soon as he finishes one
22 chapter, he sends it to us, and then we send it for translation. That is
23 perhaps why we came up with this optimistic forecast of the 12th of
24 August, to have it all translated by then, because it would have been too
25 optimistic, I believe, if we had submitted all of it only on the 23rd of
2 JUDGE ORIE: Now, I saw that the index of the content is in
3 English, but do I take it that the report will produced in B/C/S?
4 MR. BAKRAC: [Interpretation] Yes, Your Honour. In order to be as
5 expeditious as possible, we actually translated this for the Prosecution
6 so that we could provide as much information as possible. We had done
7 that in order to give the Prosecution as much as we can.
8 JUDGE ORIE: Yes. And we receive -- within the next day we
9 receive a summary of the report of Mr. Borovic and his CV.
10 MR. BAKRAC: [Interpretation] Your Honour, we shall do that as
11 soon as possible.
12 JUDGE ORIE: Mr. Jordash, I promise that had we -- that we would
13 come to your experts soon. When do you intend to file the proposed
14 expert report, because I do understand that it will be only Mr. Browne's
15 expert report. Is that correctly understood?
16 MR. JORDASH: At the moment, that is all we are certain that we
17 will file.
18 JUDGE ORIE: Yes. When?
19 MR. JORDASH: It's almost impossible to say at the moment. If I
20 can just tell Your Honour why. Mr. Browne's going to examine the
21 so-called Mladic diaries. In order to do that, we have to go through the
22 Prosecution, who have provided some restrictions on what we can do with
23 the diaries, which has taken some time to iron out. Mr. Browne now has
24 to come to The Hague. We now have another problem, which is where he can
25 examine them, and the problem with that is that the Prosecution insists
1 that he has to go to a particular lab, a forensic laboratory, to look at
2 them. OLAD are saying they're not willing to pay that. We now have to
3 go back to the Prosecution.
4 To cut a long story short, all the administrative requirements
5 have taken over, I think, six weeks now, and all that he has been able to
6 do is give them a preliminary examination. So we still haven't got the
7 funding. We still haven't worked out precisely where he can examine
8 them. Once that's worked out, and I would hope that's organised in the
9 next two to three weeks at the most, although we may have to come to Your
10 Honours if OLAD will not provide the funding.
11 Mr. Browne then want up to a month to be able to do his
12 examinations and thereafter write his report. So writing the report is
13 in additional to month. And then at that point we can serve it on the
14 parties. So at least two months, I would estimate, and maybe more.
15 [Trial Chamber confers]
16 JUDGE ORIE: Mr. Groome.
17 MR. GROOME: Your Honour, just to give the Prosecution position
18 on this. The Prosecution has tried or endeavoured to accommodate
19 Mr. Jordash's request and in most cases has within 24 hours obtained the
20 information that it needed to answer his request. The Prosecution is
21 forming its views about what can be done to the books in consultation
22 with experts at the Dutch forensic institute. They have made their
23 facility available, a room that can ensure that the books aren't
24 contaminated. So it's really a minimal requirement.
25 With respect to the tests that have been requested, the
1 Prosecution has already agreed that it would not object and would
2 facilitate any examination of the books that did not have a possibility
3 of causing deterioration or damage to the books. There is one particular
4 test that Mr. Browne wishes to conduct which, on the advice of the
5 experts at the Dutch forensic institute, the Netherlands Forensic
6 Institute, could cause damage to the books. So the Prosecution's
7 position is that we cannot consent to that. Of course, Mr. Jordash, if
8 he's able to obtain an order from the Trial Chamber requiring us to do
9 that, we would abide by any order, but we don't see that we can properly
10 consent to jeopardising the integrity of the books absent an order.
11 JUDGE ORIE: Mr. Jordash.
12 MR. JORDASH: We were not intend to criticize the Prosecution.
13 The long and short of it is is that the Prosecution insists that the
14 books have to be examined in the -- I forget the name of the laboratory.
15 JUDGE ORIE: Nederlands Forensisch Instituut.
16 MR. JORDASH: And I couldn't even have said it if I'd known it,
17 and it costs 160 euros an hour, and Mr. Browne wants to examine it --
18 these books over a month, and OLAD are saying no way, and so Mr. Browne
19 says, "Well I don't need to use the laboratory. I can examine them in
20 the court. Their facilities are sufficient to maintain the integrity of
21 the books." We're going to ask the Prosecution therefore to pay for the
22 laboratory. So that's the position we're in at the moment because
23 otherwise we don't have the funding.
24 JUDGE ORIE: Yes. If the Chamber can assist in resolving this
25 matter, of course we'll be glad to do so. I don't know to what extent
1 the expert needs the facilities of the -- I mean to sit in a laboratory
2 to read a law book may be expensive and not very efficient. I do not
3 know to what extent the expert needs the facilities of the laboratory in
4 that --
5 MR. JORDASH: Well, he's saying he doesn't.
6 JUDGE ORIE: Not at all.
7 MR. JORDASH: What he's -- what he's going to do is conduct --
8 he's basically examining them to see if they've been altered or written
9 chronologically or whether there's any evidence that they'd been doctored
10 which is what we say has occurred, and Mr. Browne is looking at them
11 through infra-red and various other techniques which examine the paper at
12 close hand, and he's saying, "Well, I think the facilities at the court
13 are sufficient," and the Prosecution are saying, "Well, we'd like you to
14 go to that laboratory. " Because our expert -- I think their expert says
15 they should be examined there. So it's a battle between the experts at
16 the moment, I think.
17 JUDGE ORIE: Yes. I see that.
18 Mr. Weber, you're an expert on the matter.
19 MR. WEBER: No, not a forensic document examiner. Your Honour,
20 at this moment the parties have not had any communications regarding the
21 topic that's being brought up by Mr. Jordash. There's been no proposal
22 for any other location, as far as the Prosecution is aware, aside from
23 the Netherlands Forensic Institute. So there's actually -- not aware at
24 this time what Mr. Jordash is talking about. Of course, you know, these
25 are notebooks that are in the possession and custody of the Office of the
1 Prosecutor, so we do have to maintain some custody over these notebooks
2 and any testing that would occur. So that is the main consideration that
3 we have had at this time along with any information that the Stanisic
4 Defence could provide us would be appreciated.
5 JUDGE ORIE: Yes. I hardly can imagine that no secure
6 environment could be found, whether or not, for example, with video
7 surveillance so as to see that nothing happens to the originals. Of
8 course, the experts being able to write down whatever notes he wants
9 outside the scope of any camera so as not to follow what he is writing.
10 And I hardly can imagine that no solution could be found for these
12 MR. WEBER: Your Honour, just to be clear, Counsel's requested
13 access to inspect the notebooks pursuant to 66(B) to conduct forensic
14 testing. So there has to be a location that can -- can facilitate the
15 forensic testing that the Defence has [indiscernible] --
16 JUDGE ORIE: Yes.
17 MR. WEBER: So the court -- the courtroom building is probably
18 not a location where the requested forensic testing could occur and
19 things of that nature.
20 JUDGE ORIE: That's exactly why I asked whether the facilities of
21 the laboratory were needed. Now, infra-red is not, I think, something
22 you need necessarily a laboratory environment to use that, and apparently
23 he brings his own equipment. I can imagine that you want to look at that
24 equipment first to see what kind of equipment it is, to check all that,
25 and then find a secured, even perhaps an environment under surveillance
1 where it could always be verified at a later stage whether anything was
2 done to the original material which was inappropriate.
3 I really can't imagine that you do not find a solution for this
4 problem. Eight times 160 euros a day, that is a thousand for one month.
5 That's well over -- I don't know whether he takes any holidays, yes or
6 no, but I can't imagine that it cannot be resolved.
7 MR. GROOME: Your Honour, and you're correct, it's just that
8 we -- this has not been the conversation up until now, and I don't want
9 to waste the Chamber's time, we will discuss this. We were always under
10 the impression that this expert wanted to use the ESDL machine which is a
11 very high-tech piece of equipment which exists only in the Netherlands
12 Forensic Institute and that's part of the reason why. The other reason
13 was to have a facility that would preserve any trace evidence on the
14 books, but we can -- we can create a -- a sterile environment here in the
15 building and we have done that already for those notebooks. So I'm happy
16 to discuss this further with Mr. Jordash, and if he does not seek to use
17 any of the equipment at the Netherlands Forensic Institute, it may very
18 well be that we can accommodate his request to do it in this building.
19 JUDGE ORIE: Well, if my observations have brought this matter
20 one step further, I'm happy and that I hope that others will take the
21 next steps.
22 The Chamber would like to be informed as soon as possible if this
23 discussion ends up in a deadlock, because that's what we cannot afford.
24 We'll then also set a time limit. I had on my mind the 15th of August
25 and then of course Dr. Browne could then take his holidays after that,
1 but I'm not the master of his family holidays.
2 Could you please keep Chamber's staff informed about any progress
3 made in this respect on a regular basis.
4 MR. JORDASH: Your Honour, yes, of course.
5 JUDGE ORIE: Then I move to what is on my -- the last item on my
6 agenda, which is -- yes, whether the Prosecution's 65 ter documents
7 should retain their 65 ter numbers or whether new numbers should be given
8 to them.
9 I do understand that the Registry has no specific preference,
10 neither has the Chamber. The risk of confusion is, I think, biggest if
11 they were provided with new numbers, so therefore the suggestion,
12 although we have no clear preference, but just in order to avoid any
13 errors in the near future is to just not give them new numbers, but again
14 we have no strong feelings about it.
15 MR. JORDASH: Our preference is to keep the old numbers.
16 MS. MARCUS: We agree, Your Honour.
17 JUDGE ORIE: Then that's how we will proceed.
18 Let me just one second.
19 [Trial Chamber and legal officer confer]
20 JUDGE ORIE: My last question is whether there's any matter to
21 the -- the parties would like to raise.
22 MR. GROOME: No, Your Honour.
23 JUDGE ORIE: Thank you, Mr. Groome.
24 Mr. Bakrac.
25 MR. BAKRAC: [Interpretation] Your Honour, five minutes if you
1 will allow me and if Mr. Stanisic can take it. Just two questions.
2 JUDGE ORIE: Yes. It's clear that if Mr. Stanisic would prefer
3 to have a break then, but it also depends on how much time you would
4 need, Mr. Jordash, because if that would be another 20 minutes, then, of
5 course, we would have to take a break anyhow and I'd rather do it now.
6 How much time -- how much time do you need, Mr. Jordash? Do you need any
7 time at all to raise any further matters.
8 MR. JORDASH: Oh, sorry, no, I don't.
9 JUDGE ORIE: Okay. Then we are talking about five minutes only,
10 and I do understand from Mr. Stanisic that he would not insist on having
11 a break.
12 MR. BAKRAC: [Interpretation] Thank you, Your Honour. I will try
13 to hurry with this so that we can be done as soon as possible for
14 Mr. Stanisic's sake.
15 According to Rule 54, we address the Trial Chamber with a
16 request. I think that we are in private session because this is
17 confidential. No, we're not. Can we please prove into private session.
18 JUDGE ORIE: We move into private session.
19 [Private session]
11 Pages 11555-11559 redacted. Private session.
9 [Open session]
10 THE REGISTRAR: We're in open session, Your Honours.
11 JUDGE ORIE: Thank you. Thank you, Madam Registrar.
12 The Chamber has nothing else on its agenda. The Prosecution has
13 no further issues to raise; Mr. Jordash, you had nothing; we have heard
14 the submissions by Mr. Bakrac, which means that this concludes this
15 Pre-Defence Conference. We will adjourn until tomorrow, Wednesday, the
16 15th of June, 9.00 in the morning, and we will then hear the opening
17 statement by the Stanisic Defence.
18 We stand adjourned.
19 --- Whereupon the hearing adjourned at 5.58 p.m.,
20 to be reconvened on Wednesday, the 15th day
21 of June, 2011, at 9.00 a.m.