1 Friday, 13 January 2012
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.04 a.m.
5 JUDGE FLUEGGE: Good morning to everybody in the courtroom. We
6 are again sitting pursuant to Rule 15 bis, pursuant to the reasons given
7 yesterday at the outset of the hearing.
8 Are there any matters to discuss before we start with the
10 Mr. Vanderpuye.
11 MR. VANDERPUYE: Thank you, Mr. President. And good morning to
12 you. Good morning to you, Your Honour, Judge Nyambe. And good morning,
14 Mr. President, I had asked for a preliminary matter to be raised
15 with the Trial Chamber because we received the binder or notebook filled
16 with materials that Mr. Pecanac had with him during the course of his
17 testimony yesterday, and we received it yesterday evening around 10.00 or
18 so. I had an opportunity briefly to go through that material just to see
19 what it was, and in doing so there appear to be materials in there that
20 are of great significance to this case, to other cases, and also to the
21 further examination of Mr. Pecanac. In particular, there are handwritten
22 notes which appear to come from a notebook which is of the type that is
23 normally kept by officers. We've seen some of those in this case already
24 which document the happenings on key dates relative to this indictment,
25 such as 14th of July 1995, the 15th of July 1995.
1 On those dates, in particular on the 14th of July, 1995, there
2 appear to be contemporaneous notes taken of a meeting that was held
3 between General Mladic, Carl Bildt, and others in Belgrade that have -- I
4 think the Trial Chamber has already received some evidence on in this
5 case. There are a number of other entries in that same notebook which I
6 have not had the opportunity to have translated or be able to read or
7 understand, digest in any way.
8 I am at the point in the examination of Mr. Pecanac where I am
9 about to go through with him his whereabouts and the whereabouts of other
10 individuals that are significant to this case and this indictment, which
11 would naturally be the subject matter of those entries in the notebook
12 that he has.
13 In addition to the notebook, apparent notebook entries that he
14 has, there are also other documents which concern the events in this case
15 that are related to the key dates, once again, 15, 16, 14th of July. And
16 these are documents, some of which I believe we have in evidence and some
17 of which I am not so sure about, but I haven't had, as you know, a lot of
18 time to go through them. I don't know whether he has the originals of
19 these documents or not because I haven't seen the actual notebook. I've
20 only received a copy of its contents, but these are documents, for
21 example, that have been authored by Colonel Petar Salapura, whom you've
22 heard from in this case, who the record has established very clearly was
23 the chief of intelligence of the Main Staff -- chief of the intelligence
24 administration of the Main Staff of the VRS during the relevant period.
25 In addition, there are other documents that are written in
1 Cyrillic which I can't negotiate at this time which I think would be also
2 clearly relevant to the further examination of Mr. Pecanac, both on
3 direct examination and probably on cross-examination as well. And that's
4 the reason why I make this application to postpone his testimony until
6 Mr. Dieckmann has been notified by Mr. McCloskey. I've briefly
7 had a chance to chat with Mr. Gajic about it, and I believe he will
8 either oppose it or make a representation with respect to the Defence's
9 position concerning this application. But I think one thing to bear in
10 mind is to the extent that I intend to go through Mr. Pecanac's
11 whereabouts during this key period of time, 11th through the 16th or 17th
12 of July, that it's important for the Prosecution to have an opportunity
13 to review these materials, which I am quite confident we will be able to
14 do before Monday over the weekend so that we can avoid having to repeat
15 this or having to recall Mr. Pecanac for the purposes of clarifying
16 issues that will undoubtedly be -- arise from a review of the material.
17 I think at this point I can say, quite confidently, based on just
18 the single notebook entries, that that material is something that I would
19 cover with Mr. Pecanac.
20 The last issue is that, while the Trial Chamber may be inclined
21 to think it would be more appropriate, perhaps, to just have Mr. Pecanac
22 address the material, question him on it, I would say that that would put
23 the Prosecution at a distinct disadvantage. I am not in a position to
24 read the document. I am not in a position to identify key entries in the
25 document, primarily because it's written in Cyrillic. The Defence
1 obviously can. The Defence obviously will go after the Prosecution has
2 an opportunity to complete its direct examination and will have an
3 opportunity to digest the material, which they can far -- they can more
4 easily negotiate than we can. And I think all that does is delay the
5 inevitable because, ultimately, I will have to come back on redirect
6 examination with the same application.
7 So that's the gist of it. I'll yield the floor to Mr. Gajic if
8 he wants to respond to the application. I will be happy to answer any
9 questions the Trial Chamber may I have.
10 JUDGE FLUEGGE: Thank you very much for this. Mr. Vanderpuye,
11 you said your request is, in fact, adjournment until Monday.
12 MR. VANDERPUYE: Yes.
13 JUDGE FLUEGGE: Normally we are sitting on Mondays in the
14 afternoon. We could do that. If I am not mistaken, the courtroom is
15 available. What is your updated and estimation about the length of the
16 examination-in-chief, if you able to say that today?
17 MR. VANDERPUYE: Well, without this document my estimate would be
18 about what it was before, and I think I -- I had amended it to say -- to
19 about four hours.
20 JUDGE FLUEGGE: Up until now you have used about two and a half
22 MR. VANDERPUYE: That's right. That was my understanding. So I
23 think that I'm more or less on tract. It may be a little bit more, a
24 little bit less, I am not sure at this point, but given the documents
25 that we have now, I think for sure I would have to reassess that, and I
1 can't say with confidence that I would be within those limits after
2 having reviewed them.
3 JUDGE FLUEGGE: I think we all agree that it would be in the
4 interest of expeditious trial, especially at this stage, that we finish
5 the examination of Mr. Pecanac before the commencement of the Defence
6 case, that means next week.
7 MR. VANDERPUYE: Yes, that's right, Mr. President.
8 JUDGE FLUEGGE: Mr. Tolimir, what is your position in this
10 THE ACCUSED: [Interpretation] I hope that the proceedings will be
11 peaceful proceedings. I think that Mr. Vanderpuye can discuss the matter
12 directly with the witness. If it's a matter of one document, the witness
13 could read the document for the benefit of all the parties, and we can
14 hear what the document contains rather than have everyone interpret it.
15 If necessary we can do this today, this afternoon, and then conclude,
16 because we've had a lot of postponements for various reasons. I think we
17 could conclude today, this morning, and this afternoon. I don't think
18 Mr. Vanderpuye will need the entire day. Thank you.
19 JUDGE FLUEGGE: Mr. Tolimir, it is very clear that we are not
20 able to finish the examination of Mr. Pecanac today, but Mr. Vanderpuye
21 has still one and a half hours to go, and your estimation was four hours.
22 It is very clear that we have to continue on Monday, not withstanding any
23 possible re-examination. If I understood you correctly, Mr. Vanderpuye,
24 it's not only because of one document, as Mr. Tolimir said, but quite a
25 lot of documents.
1 MR. VANDERPUYE: That's correct, Mr. President. And I don't know
2 whether or not the Chamber has received a copy of these materials, but
3 from my recollection of them, the stack is about two or three inches
4 thick of paper. There is several hundreds, or maybe at least a hundred
5 pages of material there. A lot of it is not relevant. I'll be frank.
6 There is a lot of material in there that has nothing to do with anything.
7 There's some magazines in there and things of that nature, and personal
8 documents, but there are, in fact, a fair number of relevant military
9 documents. There are, it appears to be, photocopies of at least one, if
10 not two, notebooks. It's not clear to me if they are separate or not,
11 but they look to be different.
12 And, for example, the entry that I was just discussing from the
13 14th of July contains notes that suggest -- or, rather, say, MP, we
14 believe to be Perisic, speaks. There are notes taken of that. It says:
15 Bildt is coming; just approved, Akashi, Stoltenberg, it says; and then it
16 says, Boss, and these are notes underneath it; Plavi, meaning Blue, which
17 was a name that was used for Perisic, knows what they have done with the
18 Turks. This is on the 14th of July, and we consider it to be a very
19 significant entry on this notebook.
20 JUDGE FLUEGGE: Mr. Vanderpuye, you are aware of the fact that we
21 are in open session.
22 MR. VANDERPUYE: I am aware of that.
23 JUDGE FLUEGGE: Please continue.
24 MR. VANDERPUYE: And this is what we have in the notebooks or the
25 materials that were seized from the witness. So I think it's very
1 important to have the opportunity to review this material thoroughly, and
2 I mentioned also there were other documents concerning Colonel Salapura
3 and the like.
4 I -- the one other concern, before I forget, and my colleague has
5 reminded me, is to the extent that we don't know whether Mr. Pecanac
6 actually has original documents or photocopies, we would like for those
7 materials to remain in the possession of the Registry until such time as
8 we've had an opportunity to identify the specific documents, obviously,
9 documents that are not personal -- of a personal nature or irrelevant to
10 the proceedings but those documents that we think are appropriate for the
11 Trial Chamber to have before it and/or for the investigation of --
12 continued investigation of this and other cases to be seized.
13 We will be in a better position, obviously, on Monday to identify
14 specifically what those items are, but until such time I think it's in
15 the best interests of really everyone, and particularly in interest of
16 justice and the Tribunal's interest, that those documents, to the extent
17 that they are, as I can see, on their face, that they contain relevant
18 evidence for the proceedings before this Tribunal, they should remain at
19 least within the custody of the Registry. It's our intention at some
20 point, once we've identified the materials we want to have, to seize
21 them. But I thought that's important to raise with the Chamber.
22 JUDGE FLUEGGE: I would kindly ask the Court Officer to tell us
23 whether or not the documents were given back to Mr. Pecanac yesterday.
24 [Trial Chamber and Registrar confer]
25 JUDGE FLUEGGE: Mr. Gajic, I saw you on your feet.
1 MR. GAJIC: [Interpretation] Your Honour, I have to admit that I
2 am personally somewhat surprised at the request made by Mr. Vanderpuye
3 this morning, to have this hearing postponed until Monday. Last night I
4 had the opportunity of looking through the documents. I did so up until
5 2.00 in the morning. It contains a lot of newspaper articles, many
6 private documents, certain sales contracts, and so on and so forth. But
7 what is relevant for this case consists of the number of documents I have
8 in my hands, for example, and many of these documents are already in
10 The notes, well, there aren't many of them, I would say, and all
11 of the notes could be gone through by Mr. Vanderpuye together with the
13 JUDGE FLUEGGE: Mr. Gajic, I would like to remind you, also you
14 should slow down while speaking.
15 MR. GAJIC: [Interpretation] Thank you for that warning,
16 Your Honour.
17 So I think Mr. Vanderpuye could go through all these documents
18 together with the witness, and the witness could then provide the
19 necessary explanations. That is all the more the case given that some of
20 the notes are not very legible. I believe that it would be difficult for
21 anyone to go through them without the assistance of Mr. Pecanac, such as
22 the nature of his handwriting.
23 As for Mr. Vanderpuye's request to keep the documents, I don't
24 think that would be appropriate since Mr. Pecanac voluntarily provided
25 the documents to us and to the Prosecution so that we could make use of
1 them. We already have copies of these documents, and we believe that
2 this is quite sufficient. The documents should, perhaps, be returned to
3 Mr. Pecanac. Perhaps, if necessary, the Prosecution could make further
4 copies of the documents. If that were to be case, I don't think there
5 would be any problems, but I don't think we should talk about guarding
6 the documents, keeping them in custody.
7 JUDGE FLUEGGE: Mr. Vanderpuye.
8 MR. VANDERPUYE: Well, I can address that in a number of ways.
9 The first thing is, obviously Mr. Gajic has the clear advantage of being
10 able to read materials in Cyrillic relative to me. So if we got the
11 documents at the same time, it's not surprising to me that he's able to
12 identify specifically which documents he believes are necessary or
13 relevant to this case. I am not in the position that he's in, to be able
14 to do that. I'm certainly not in a position to be able to do that on the
15 spot while cross-examining or examining the witness. As you know, he is
16 a witness that is somewhat reluctant to testify in these proceedings. He
17 said that on a number of occasions, both in the particular proceeding and
18 in his own proceeding, for contempt of this Tribunal. He's made it quite
19 clear that he is testifying in support of the Defence, not just
20 General Tolimir's Defence but, in general, the defence of all VRS members
21 that are charged in relation to these same crimes, and so it seems to me
22 that I'm in a completely different position that Mr. Gajic has
23 characterised with respect to my ability to proceed with Mr. Pecanac
24 effectively and efficiently in this case.
25 The second thing is, with respect to guarding the documents, this
1 is a man who had documents seized from him by the Serbian authorities.
2 Not only did they seize documents from him in December 2009, he testified
3 that when they did seize the documents, he kept some of the ones which he
4 later turned over, and then he kept some more. It seems to me that it's
5 in the interest of preserving the evidence in this case to take those
6 documents from him at least long enough for the parties to have an
7 opportunity to identify if there are any documents that he possesses -
8 and I mean originals in this particular instance - photocopies of
9 photocopies, but original documents are documents that are
10 self-authenticating, to a large extent. And it if he has them and they
11 are nowhere else, and it seems to me that that would be an appropriate
12 step to make by the Chamber in order to preserve evidence for the benefit
13 of the Tribunal, there are a number of documents, as you can see from the
14 scans, which contain original stamps, original -- they are scanned
15 copies, he doesn't use the word "scanned" but digitised copies of
16 original documents, and I don't know what's in that binder. I have
17 photocopies. If there are original documents in that binder then it
18 seems to me that it's an appropriate step for the Tribunal to make
19 because they may not make it back here.
20 That's number one.
21 And number two, even if they do make it back here there may be
22 the problem of calling the witness to authenticate them, the very same
23 Mr. Pecanac who has been held in contempt of court for failing to respond
24 to a subpoena. So it seems to me that Mr. Gajic's opposition to the
25 seizure of the documents is completely ill-founded and it ignores the
1 record of the proceedings as concerns this particular witness. It may be
2 a different circumstance with someone else, but certainly not somebody
3 who has refused to come to court, certainly not someone who has not
4 volunteered to give the documents to the Serbian authorities, certainly
5 as someone who has retained stashes of these documents in various places,
6 as is indicated in his statements to the Serbian courts and
7 Judge Milan Dilparic, as this Trial Chamber is aware. In those
8 circumstances I think we are in a different category all together.
9 The other thing is we are able, and we do have the capability, to
10 take the documents that we've identified, to process them in an evidence
11 room, they can be handled by an investigator so we are not party to it,
12 it can be dealt with by the evidence unit, scanned, and if necessary,
13 returned to the witness. But that decision and that process can occur
14 now and it can occur probably even today, and that's the reason why I
15 think it's appropriate that the documents remain in the custody of the
16 Registry, even Mr. Dieckmann, until such time as that's able -- that we
17 can do this.
18 JUDGE FLUEGGE: Thank you for that. The Court Officer has
19 informed me that the documents are at the moment here in the courtroom
20 and not yet returned to the witness.
21 Are there any other submissions? If not, the Chamber would like
22 to consider the situation during a break. We have to consult, and we
23 will return to the courtroom at 10.00. We adjourn.
24 --- Break taken at 9.27 a.m.
25 --- On resuming at 10.00 a.m.
1 JUDGE FLUEGGE: The Chamber has considered the submission of the
2 Prosecution to postpone the hearing and to continue only on Monday. We
3 are of the view that this is a well-reasoned request because - and this
4 is addressed to the Defence - it is always better to have an
5 examination-in-chief or a cross-examination which is well prepared, and
6 the difference between the parties is, of course, the skills, the
7 language skills of the participants of counsel to fully understand the
8 context and the content of certain documents written in Cyrillic or in
9 Serbian language, and, therefore, it is a valid request by the
10 Prosecution to ask for more time to prepare for the remainder of the
12 We will continue by Monday, in the afternoon, 2.15, and we hope
13 that the Prosecution is in the position to give us an estimate of the
14 length of the remainder of the examination-in-chief as soon as possible,
15 at least at the beginning of the session on Monday.
16 The other request in relation to the documents, the Chamber would
17 like to discuss it in the presence of Mr. Pecanac, and therefore the
18 witness should be brought in, please.
19 [The witness takes the stand]
20 JUDGE FLUEGGE: Good morning, Mr. Pecanac. Welcome back to the
22 First of all, our apologies that you had to wait for more than
23 one hour. We had to discuss several procedural matters in your absence.
24 The Chamber decided to continue your examination only on Monday. The
25 Prosecution requested more time for preparation for the remainder of your
1 examination-in-chief due to the documents you handed over yesterday
2 evening to the Registry with delivering copies to the parties and to your
3 counsel, and, therefore, the Prosecution needs more time to look through
4 it and to prepare a good examination-in-chief, and the same is the fact
5 for the Defence. And perhaps it's better for you to have a longer rest
6 between the examination of yesterday and the continuation on Monday.
7 Mr. Pecanac, we have one matter to discuss with you. You handed
8 over voluntarily, yesterday, the binder of documents you had in your
9 possession. The Chamber would like to ask you if you would agree that
10 the documents would remain in the custody of the Registry at least until
11 the end of your testimony so that the parties are in a position to
12 compare the originals you have handed over with the copies made yesterday
13 and handed over to the parties. This is for evidentiary purposes very
14 useful for the Chamber to know which is a copy, which is the original.
15 If you need the documents for your further examination, the
16 Registry would be able to prepare another set of copies to hand it over
17 to you so that you have it in your possession during the remainder of
18 your examination. Would that be acceptable for you?
19 THE WITNESS: [Interpretation] Thank you, Judge. Greetings to
20 everybody in the courtroom. I would accept what you offered because I do
21 really need these documents in order to prepare myself for the
22 examination by the Prosecution and that was precisely the reason why I
23 have brought them with me.
24 Excuse me, there is one bunch of documents that has to be
25 submitted to -- the documents concerning the means testing procedure with
1 the connection of appointing a lawyer, and these documents are included
2 in the set that I have already handed over to you.
3 JUDGE FLUEGGE: I am not fully understanding what you are talking
4 about, but, Mr. Dieckmann, I think you are in a position to help us.
5 MR. DIECKMANN: Perhaps I can clarify, OLAD, the Office for
6 Legal Defence and Assistance, still needs some document regarding his
7 financial situation, and he brought this document with him to hand over
8 to OLAD to make a final decision about legal aid for him. And so the
9 original documents, in this regard, shall be handed over to OLAD. This
10 is his position, that they can make the final decision. Thank you.
11 JUDGE FLUEGGE: The Chamber has some problems now to distinguish
12 between those documents who are related to this question and the other
13 documents in the binder of the witness.
14 Mr. Dieckmann.
15 MR. DIECKMANN: I think due to my humble opinion it would be no
16 problem to inform OLAD that the documents are here, and that it's -- I
17 think it's possible after his testimony is finished to select them and to
18 give it to OLAD after this. I think that would be fine. So they can
19 remain in the complete binder now.
20 JUDGE FLUEGGE: Thank you very much. I would kindly ask the
21 Court Officer to give this information to OLAD so that they can require
22 copies of it and look into the original so that this problem with counsel
23 can be solved easily, even without the possession of the original
24 documents for OLAD.
25 I think we all agree that this is an acceptable way. I would
1 kindly request the Registry to produce another set of copies of the whole
2 binder and to hand it over to Mr. Pecanac today after the court hearing,
3 and the other documents should remained in the custody of the Registry,
4 available for both parties to look into the originals and to compare them
5 with the copies. And further decisions will be taken at the end of the
6 testimony of Mr. Pecanac.
7 We have, if there are no other matters, we will adjourn now and
8 resume on Monday in the afternoon, 2.15, in this courtroom. If there is
9 a need for it, and I suppose it is, we will continue on Tuesday. The
10 time in the morning or in the afternoon has to be determined at a later
11 stage. We adjourn.
12 --- Whereupon the hearing adjourned at 10.09 a.m.,
13 to be reconvened on Monday, the 16th day of
14 January, 2012, at 2.15 p.m.