Tribunal Criminal Tribunal for the Former Yugoslavia

Page 18085

 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

 9     witness?

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,

13     everyone.

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.

Page 18086

 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

Page 18087

 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

 5     Monday.

 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

Page 18088

 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

21     hours.

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

Page 18089

 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

 9     respect?

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.

Page 18090

 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

Page 18091

 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.

Page 18092

 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

 9     evidence.

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

12     witness.

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

Page 18093

 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

Page 18094

 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

Page 18095

 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.

Page 18096

 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

11     examination-in-chief.

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

21     courtroom.

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

Page 18097

 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

Page 18098

 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

Page 18099

 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.