4323 Thursday, 22 April 2010
[The accused entered court]
--- Upon commencing at 5.06 p.m.
JUDGE ORIE: Good afternoon to everyone. Madam Registrar, would you please call the case.
THE REGISTRAR: Good afternoon, Your Honours. Good afternoon to everyone in and around the courtroom. This is the case IT-03-69-T, The Prosecutor versus
Jovica Stanisic and Franko Simatovic.
JUDGE ORIE: Thank you, Madam Registrar. I first would like to inform the parties that the decision on the request for postponement of the witness and to further postponement of hearing the case has been signed and most likely has been filed by now, that was the decision that was informally communicated with the parties. Second, a matter of which I do not know whether we have to further discuss it; and if so, perhaps we better do that in open session. The Chamber is aware, on the basis of the recent medical report but also on even more recent information, the problems that you, Mr. Stanisic, are having at this moment. The Chamber highly appreciates that you are in court; whereas, we are understand that even this afternoon, you had to visit a specialist. I -- if there's any reason to further discuss at this moment, of course, we'll do so. If you'd say, Matters are more or less under control. I'm also thinking about the schedule for tomorrow. As you may be aware, the Chamber would like very much to see whether we 4324 can -- could hear the evidence of the next witness today and tomorrow, and we have an adapted schedule drafted for tomorrow. There have been consultations with the Stanisic Defence on the matter. The Chamber is aware that, although we strictly adhere to sessions no longer than 75 minutes and never a break which is shorter than half an hour, that, nevertheless, it's -- it's a little bit more hours than we usually have. To some extent, this is also caused by the air traffic problems that Europe suffered this week.
Therefore, if there's anything further to be said about it, we could do so; and then, if prepared, we could go into private session for that purpose.
MR. JORDASH: I think probably just one thing which can I say in an open session, which is that Mr. Stanisic is likely to receive some kind of treatment on Tuesday, next, for the complaint which Your Honours are aware of.
JUDGE ORIE: Yes.
MR. JORDASH: He's going to do his best tomorrow, but he's not hopeful, given the pain, that he will be able to last all day. But he will do his best.
JUDGE ORIE: Yes. As a alternative, we still have the videolink option which is not a perfect one but which, under circumstances, might be able to help us out. I'm -- so, therefore, if Mr. Stanisic would consider that as an alternative for tomorrow, we would take care that everything is in place. 4325
MR. JORDASH: Certainly.
JUDGE ORIE: Yes. We will hear if anything further should be said about it, Mr. Jordash.
Then the third issue, and I'll refrain from raising any issue unless there is some urgency in the matter, is in relation to Witness JF-49.
[The Chamber and Registrar confer]
JUDGE ORIE: I'm just looking at you. Should we deal with the matter in private session or not?
MR. GROOME: Your Honour, it may be best. I'm not sure what the Chamber is going to say, but ...
JUDGE ORIE: Okay. Let's -- out of an abundance of caution, it's a very practical matter, but, nevertheless, the Chamber would move into private session.
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THE REGISTRAR: We are in open session, Your Honours.
JUDGE ORIE: Thank you, Madam Registrar. Mr. Groome, apart from your reminding me that we should turn into open session, anything else before Mr. Jordash presents his oral motion?
MR. GROOME: Well, with respect to the continuing the exercise, I'm happy to make the representation to the Chamber that if it makes it -- that I would not speak with the witness from the time he begins to testify, he is working with an interpreter now and an investigator and 4331 they're simply going through the documents. I could make arrangement that they're gone from my office when I return and I have no contact with the witness.
JUDGE ORIE: Okay. If it comes to that, we'll then consider that.
Mr. Jordash, could you present your oral motion.
MR. JORDASH: Could I also clarify, along with the Simatovic team, that we put the application in the alternative. If Your Honours don't find in favour with the first, then the second would suffice, in our submission.
The application is based on a non-disclosure of a Rule 66 statement. The Prosecution wrote to the parties yesterday. I think Your Honours would have received a copy -- a copy of two documents, and I'm referring now to the document which is entitled "Witness JF-054 Information Related to Direct Examination." And the first paragraph sets out the Prosecution position in relation to where they've got to with their investigation with this witness, and, as a consequence, it sets out where they've got to as with -- as in their disclosure obligations. The Prosecution state that because the witness has not cooperated there is no prior ICTY statement in which his knowledge of Mr. Stanisic and Mr. Simatovic has been comprehensively explored. And I quote: "I, like you, am limited by what he has said."
I won't read the rest of that. But Your Honours can see that. And I won't read the rest of it because we're in an open session.
JUDGE ORIE: Let me see. 4332
MR. JORDASH: So am I --
JUDGE ORIE: I'm just -- I must say that I haven't seen what you just read.
MR. JORDASH: [Overlapping speakers] ...
JUDGE ORIE: No I'm not blaming you for that. But being in court on other cases the whole day, it's sometimes almost impossible to follow the tens and tens of e-mails that we receive.
One second, please.
[Trial Chamber and Legal Officer confer]
MR. JORDASH: It's the two letters setting out the Prosecution's intended approach with this witness --
JUDGE ORIE: Yes.
MR. JORDASH: -- dated the 21st of April, 2010.
JUDGE ORIE: Let me just have a look. Yes, the Chamber has been informed about this letter.
MR. JORDASH: There are two letters, Your Honour, both of which deal with the same subject.
JUDGE ORIE: Yes. We received a copy of one -- no, that was not a copy but that was a memo, a confidential memo addressed to the Trial Chamber dated the 21st of April.
Was this sent electronically as well, or was it sent purely electronically?
MR. GROOME: It was sent electronically to the Chamber and a copy to Defence counsel.
JUDGE ORIE: Yes. Now, then there is a letter dated the 4333 21st of April, 2010.
MR. JORDASH: And --
JUDGE ORIE: Which is addressed to Mr. Knoops and Mr. Bakrac. Is that the one you have --
MR. JORDASH: That's the one, Your Honour, yes.
JUDGE ORIE: Could you take us to the relevant portion.
MR. JORDASH: The paragraph I was just addressing, Your Honours, is the first paragraph dealing with --
JUDGE ORIE: Yes.
MR. JORDASH: -- the Prosecution's candid and frank admission - and we're grateful for that - that the witness hasn't been interviewed in relation to this case. And -- and ...
JUDGE ORIE: There is no prior ICTY statement in which his knowledge of Mr. Stanisic and Mr. Simatovic has been comprehensively explored.
MR. JORDASH: Yes.
JUDGE ORIE: Yes.
MR. JORDASH: And that's the basis of the application, that whilst we appreciate, of course, the difficulties that the Prosecution have had with this witness, the fact that a subpoena has to be issued does not, in our submission, obviate the need for disclosure.
JUDGE ORIE: Disclosure of ...
MR. JORDASH: A statement taken with the accused in mind directed towards the evidence the Prosecution wish to elicit, evidence which the Prosecution say is probative of the charges. Instead what we've had is 4334 the disclosure of massive material of previous statements - and I use the term "statements" in a general sense - in which everything but the accused's indictment has been explored; whilst Mr. Stanisic appears, I think, three times in that hundreds and hundreds of pages. As the Prosecution have conceded, there is nothing in those statements which comprehensively explores what the witness knows about Mr. Stanisic. And we submit that is completely unfair and puts us into an impossible position. The situation was already, in our respectful submission, very difficult because of the reasons we set out in our application to adjourn the witness in the first place, which, of course, I'm not seeking to re-litigate. But the situation, in our submission, was already difficult because of time constraints and because of evidence which we know exists and which we haven't, as yet, had access to. But this position now is different, because we actually do not know what the witness will say about Mr. Stanisic. And --
JUDGE ORIE: Perhaps not that much. I do not know. But, no, let me first allow you to continue.
MR. JORDASH: Why do we say this matters in this case so -- in this instance so much? One, because of the nature of this witness and who he is and who he was and what he might be able to say. Two, and related to that, if the Prosecution had taken a Rule 66 statement, that process itself may have turned up all manner of exculpatory material which we are entitled to before being placed into a position of having to cross-examine.
Thirdly, the process that has been suggested by the Prosecution 4335 in relation to process they want to follow with this witness requires, in our submission, that we know, in order to make cross-examination effective, what it is the witness may say about Mr. Stanisic generally but also what he might be able to say about the documents he's going to be asked to authentic.
It may be enough for the Prosecution to have the witness look at documents and authenticate him. But as they concede in this letter, we may want to cross-examine on those documents.
JUDGE ORIE: On the content.
MR. JORDASH: On the content.
JUDGE ORIE: But there are several issues there, several -- no, again I'm not going to interrupt you. Please -- please continue, Mr. Jordash. I'll try to write down my questions for myself.
MR. JORDASH: Well, there's effectively three or four main -- four categories of documents. There's the first category which is a category of documents the Prosecution wish to put into evidence. We have absolutely no idea what the witness might be able to say about those documents. The Prosecution hope that he can authenticate them, but we don't know what he has to say about the contents. And so we don't know whether the witness is going to say -- give evidence which is adverse to the accused or exculpatory of the charges. So we will be cross-examining completely blind.
The second category, a category of documents which the Prosecution will not put into evidence but will just seek to have the witness authenticate, we have the same problem. The Prosecution may not 4336 wish to tender those documents but the Defence may wish to cross-examine on them. And we have the same problem: We don't know what the witness will say about them.
We have the additional problem which is that Exhibit 4158, which was a single exhibit at one point dealing with a single date - it's a VRS report - has now transformed into a number of documents which, we submit, ought to have been subject to an application to add to the exhibit list. I can go into that further but I -- I'll simply leave it at that at this stage.
The third category are documents the Prosecution say speak for themselves. These are potentially highly relevant documents. A number contain the names and allegations -- sorry. A number -- a number of them contain allegations against Mr. Stanisic which are probative of the charges in some way. We do not know what the witness is going to say about that. We don't if the witness knows anything about that evidence or not, but the Prosecution will adduce them, have the witness authenticate them, and we are left with the unenviable position of either having to take a risk and cross-examine, not knowing what he is going to say about them, or take a cautious approach, which is not to ask any questions about them at all but leave the evidence on the record, looking incriminatory, but perhaps not, if we had had proper disclosure as to what this witness might say about them.
And the fourth category are the diaries which we have been discussing in relation to this witness, but I won't go into that again, but the same point as we made before aggravate this lack of disclosure, 4337 we submit.
In short, this is, we submit, unprecedented, to call a witness of this stature with effectively only a video standing as his Rule 66 statement against the accused. That is it. This person with a video. That is it. That's all we have. That's why we submit, at the very least, we are entitled to have him give his evidence and we are entitled then to protections which flow from the disclosure rules which is a reasonable time to consider that evidence, investigate it, and prepare for cross-examination.
Those are our submissions.
JUDGE ORIE: Thank you. Anything to be added, Mr. Petrovic?
MR. PETROVIC: [Interpretation] Your Honours, very briefly. I wish to say something that pertains to the last bit that my colleague spoke of. The Simatovic Defence fully supports what my learned friend Mr. Jordash said, and I would like to reiterate just one aspect mentioned by him in his last bit.
In the letter that we received from the Prosecutor on the 21st of April, they say that they will rely on what this witness publicly stated. What I would like to say additionally is that we need to know what source this involves. The film called "One," which is the main source, potentially, is an amalgam of statements by various persons where one cannot tell where one speaker begins and the other one takes over. It's a total mess in terms of trying to establish to which period of time this pertains to which persons and so on. 4338 So this is an edited film composed of a number of smaller parts with narrator speaking and giving additional explanations about the roles of people.
So this film, "one," as a source for what we can expect to hear from this witness, is something that troubles us. It is hard to anticipate based on this film what this witness is going to say. Because, as I said, it is composed of segments which last ten or so seconds and then they're interrupted by another segment, all of them with different speakers.
So to base everything on this source alone is unfair. And this film on its own is not an appropriate basis for us to gain some understanding of what this witness could potentially say.
JUDGE ORIE: Now, before I give an opportunity to Mr. Groome to respond, Mr. Jordash, if a witness who, by virtue of his position, is likely to have all kind of information and refuses to talk to the Prosecution, would you say, then, have you no witness? Is that your position? Because you are relying on Rule 66, which says that all statements taken, copies of statements, et cetera, that they should be disclosed.
Now what the Prosecution tell us is that there are no statements. Is there any way in which you could enforce a witness to give his views or give his information to the Prosecution prior to having been called as a witness?
MR. JORDASH: I think the issuance of a subpoena contains that obligation. 4339
JUDGE ORIE: To talk?
MR. JORDASH: It's an obligation -- yes.
JUDGE ORIE: To appear before this Court.
MR. JORDASH: Well, to appear -- one could read into that an obligation to give a statement. But ...
JUDGE ORIE: Any authority for that?
MR. JORDASH: No. I don't think there is authority for that.
JUDGE ORIE: Because that's, of course, you're blaming the Prosecution for not providing with you statements; whereas, of course, the Prosecution says we couldn't take any statement because the witness was not cooperative. Therefore, I would expect you, then, to come up with any authority which would show that the Prosecution can be blamed for not presenting any statements.
MR. JORDASH: For us, the issue is not one of blaming the Prosecution. We appreciate the difficulties that they -- they've had. But that does not --
JUDGE ORIE: Then we come to my next question: If, under those circumstances, the witness was not cooperative and has a duty to come and testify and has to be subpoenaed for those purposes, well, if the Prosecution has set out approximately what they considered they could elicit from the witness which is an obligation under Rule 65 ter, would that -- if we only have that, and if you say you can't blame the Prosecution for that, and you repeatedly said, We do not know what the witness is going to say. It could even be that the Prosecution does not know what the witness is going to say. But consider him to be in a 4340 position where he could provide relevant information and will focus, in the question, on that.
What, then, is the legal basis for saying, This is not acceptable, which is more or less what you are telling us?
MR. JORDASH: Well, the legal basis is Article 21, which is the right of the accused to have prompt and in detail the information about the nature and cause of the charges. And the cause of the charges means the factual basis underpinning the charges.
JUDGE ORIE: But would that include evidence beyond disclosure rules?
MR. JORDASH: But this is evidence which is not beyond the disclosure rules. It's well within the disclosure rules.
JUDGE ORIE: Where is it -- where does it say anywhere that the Prosecution, who apparently is not -- has not been in a position to obtain any statements, but -- well, if you compare that with an ordinary case, someone who was an eye-witness of the -- of the relevant event and to call that witness who doesn't want to talk to anyone prior to that but has an obligation a civil obligation to testify ...
MR. JORDASH: There is not -- well, there isn't a rule which says that the Prosecution have a duty to force a witness to give a statement, but there is a rule which says that if a statement is not obtained and the -- and the Defence are put in a disadvantage because of that because they do not have the evidential material which is going to be adduced by a witness, that -- that will lead to an unfair trial.
JUDGE ORIE: Where is that rule? Well, any authority for that? 4341
MR. JORDASH: Well, there's ample authority for -- well, one particular authority which I can hand Your Honours now is authority from the ICTY [sic], the Ntahobali case, the 1st of November, 2000, decision on Defence motion for disclosure of evidence. In our submission, it's absolutely trite law that the Defence are entitled to both --
JUDGE ORIE: Okay. What does that decision in respect of the duty to disclose evidence to the extent it has not yet been available to the Prosecution?
Could you quote the -- the relevant part? Because I'm interested in it -- very much in it. Because what you say is more or less: If a witness refuses to talk to the Prosecution, you can't present him as a witness anymore, even if there are good reasons to believe that the witness has relevant information that could be elicited from him in examination-in-chief and cross-examination. That's more or less the bottom line of what you are telling us.
MR. JORDASH: Well, in my submission, respectively, this argument isn't the point, because the point is that the witness is upstairs cooperating with the Prosecution.
JUDGE ORIE: Yes. Okay. We have dealt with the first part of it.
Second is, now, this special procedure about -- you say we can't cross-examine -- I mean, the alternative was - and I think Mr. Groome has set out that clearly he is trying to save time. Otherwise what he would have done is to put a document to the witness and say, You, having dealt with so many documents in this area - and, of course, he will explore 4342 that on the basis of his CV - is there any reason why [indiscernible] is there anything you could tell us which would make you believe that this is an authenticate document or a none-authenticate document without going into any further details.
Now, whether or not, then, that document would be sought to be admitted into evidence is a totally different matter. It could well be that Mr. Groome - I do not know yet - that he says, Well, at least I want, for the later stages of this case, I would like to have in evidence that a document which was shown to the witness and a document which in itself is not yet in evidence but perhaps at a later stage through other witnesses we would learn about the content or the substance of the document, but already at least for someone who knew signatures, handwriting, formats of documents, already to have on the record that that that person, perhaps even being totally unaware of the content of it, has recognised handwriting or format, even being not familiar with the content of the document.
I'm wondering what's wrong with that? And if you want to ask him about the content, there are -- first of all, you can do that. But then it would be not in response to what Mr. Groome has asked. If we're looking at Rule 90, can you challenge the evidence well, apparently the content is then not - that's at least how I understand it at this moment - what Mr. Groome is intending to do.
The content is -- is not discussed and therefore is hardly need of any challenge. If, however, you then would like, under Rule 90(H), to cross-examine the witness on the content, what's there that would prevent 4343 you from doing, even if it's not dealt with by Mr. Groome, then -- or Mr. Weber, perhaps I should say? Even then if you think that the evidence of the witness could support your case, you can ask him questions about that.
But there -- the mere fact that there are two elements that Mr. Groome has clearly indicated that he'll be very limited in what he'll ask the witness about those questions. If you want to ask him more questions and then to say, Yes, but then I don't know what the witness is going to say, Mr. Groome, of course, could present the witness here in court and do exactly at what is done upstairs apparently just by an interpreter.
It's -- it's merely a time-saving exercise. That's at least how I understand it. Not going into the substance in any way. So, therefore, these questions, the first, disclosure obligations instead of providing a 65 ter summary; and the second, saying all kind of documents are put to him, you're not even asking questions about the content. Perhaps Mr. Groome expects that the witness doesn't know anything about the content.
MR. JORDASH: Well, if can I answer that in this way.
JUDGE ORIE: Yes.
MR. JORDASH: Firstly, the Prosecution --
JUDGE ORIE: No, perhaps I asked you a couple of questions in anticipation of what Mr. Groome would respond do your oral motion. Therefore, I would suggest that we now first give an opportunity to Mr. Groome to respond to your oral motion and then, if need be, you 4344 will have a second round to further explain.
MR. GROOME: Your Honour, just a few points. One is I am in exactly the same position as the Defence. This man has repeatedly refused to meet with the Prosecution with respect to this case; he has met with the Prosecution with respect to other cases. I think a good analogy is a court witness. There is no requirement that, before a witness can be called as a court witness, that person is compelled to write a statement. Both parties are in the position where, while they may know that a witness has relevant information, they do not have the benefit of a full comprehensive statement.
With respect to the -- the interview, what we both do have and what I -- what first made me realise that there was a witness of relevance for this trial was that this witness gave an interview in a documentary and just based on the few passages in the documentary it was clear that because during the time -- dealing with the time-period that this indictment covers, dealing with the issues that this indictment covers, the few meetings that this witness had with Mr. Stanisic that he describes in the documentary made it clear that he was an important witness that should be subpoenaed and the Court should hear his evidence. Now, I, too, would have loved or would have appreciated the benefit of having spoken to him at length. He has never done that. I did speak to the documentary maker in an effort to get the complete interview of the -- of General Milovanovic. The documentary maker said that most of the interview is in the documentary, cut up into different 4345 segments and put where he believed it should be put, and that anything that remained he discarded, he did not have. So all that we have from that interview is what's the -- in the -- the documentary. To answer Mr. Petrovic's point, the only thing that the Prosecution seeks to rely on in that documentary is what the General Milovanovic said himself.
One other point, Your Honour, just with respect to the documents, the Prosecution is seeking to tender 54 documents -- no, I'm sorry, 11 documents where the Prosecution seeks to rely on the substance of the document. We also seek to introduce -- we want to deal with 54 other documents, and the only thing the Prosecution -- the only evidential value that the Prosecution is putting forward with respect to these 54 documents is that to establish, as our burden of proof requires, that Mr. Stanisic knew what was going on in Bosnia and had access to knowledge of what was transpiring in Bosnia.
So all we're seeking to introduce -- and these are documents that were recovered from the state security archive, the organisation that Mr. Stanisic headed, documents personally addressed to him in most cases and in some cases simply to the State Security Service. So all we are trying to establish is to be able to demonstrate to the Chamber that on a regular basis Mr. Stanisic received reports from the Army of Republika Srpska.
JUDGE ORIE: May I take it that by that you will establish that reports were there which give his name as an addressee?
MR. GROOME: Yes, Your Honour. 4346
JUDGE ORIE: [Overlapping speakers] ... whether he received that, it's a different matter. You would agree on that?
MR. GROOME: [Overlapping speakers] ... Yes, Your Honour. Yes.
JUDGE ORIE: Yes.
MR. GROOME: There are some initials on the documents which we have reason to believe may be either Mr. Simatovic's or Mr. Stanisic's initials, but we will ask a further witness later on in the process to see whether they identify that.
The only other point that I would make, Your Honour, is last week Mr. Jordash asked me whether he could speak with General Milovanovic before he testified, and I said that I would be happy, if Mr. Jordash wrote a letter inviting General Milovanovic to speak with him, I would be happy to give that to the General Milovanovic. I offered to do it in a sealed envelope so if there was some -- you know, if he didn't want me to be privy to the request or to the response. I haven't heard back from Mr. Jordash. But I think I've been reasonable; I think I've done everything that I can; I appreciate the unique circumstances that we are in, but I'm in precisely the same circumstance as the Defence.
JUDGE ORIE: Mr. Jordash, a brief response, please.
MR. JORDASH: A brief response, if I may. In our respectful submission, the Prosecution's comments are based on a false premise, a completely false premise. They have the witness upstairs. As much as they can take him through exhibits, they can ask him about the comments in the video. They can take a statement and they can disclose it. And choosing not to is -- 4347
JUDGE ORIE: Mr. Jordash, let's try to keep matters straight. The Prosecution said that the Witness Milovanovic consistently refused to meet with the Prosecution. Is that challenged? Do you accept that as --
MR. JORDASH: No, that's not challenged.
JUDGE ORIE: Okay. Now, we all know that the witness arrived yesterday evening, and that, from what we understand, there was no conversation on the substance to that, therefore, now to state that the witness is there, the witness is there, on the basis of a clearly defined exercise which doesn't go to the substance but just to the matters which could have been produced here in court.
Have you tried, Mr. Groome, to speak with the witness on any other matter?
MR. GROOME: Your Honour, I -- so the record is clear, I showed him the clips of video and I did ask him particular questions: How did he know this; can you give me more precise information about this. And it is my intention to draft a proofing note about what he has told me. But, so the record is clear, I have ask him and he is -- has answered questions related to the clips that I have showed him today.
JUDGE ORIE: So the -- to say that the witness has refused to talk to you is valid, until today.
MR. GROOME: Until 9.00 this morning, Your Honour.
JUDGE ORIE: Until 9.00 this morning.
MR. GROOME: 9.15 to be precise.
JUDGE ORIE: Yes. And you have -- especially here where there is 4348 no statement taken, have you informed Mr. Jordash about what you discussed with him? Because I gained the impression that you had limited yourself, perhaps, to the -- the witness background, the CV, which is shortened and doesn't take then 30 pages of transcript, and those listed of documents. But, apparently, you have spoken with him on other matters as well on the substance.
MR. GROOME: I've showed him the clips, and I've asked for comment or to explain certain matters on the clips. That's happened this afternoon. I literally walked down, left him, and walked into court. It is my full intention to provide all notes about anything that he has said today to Defence counsel.
JUDGE ORIE: Okay. I interrupted you, Mr. Jordash, because I want to have a clear factual view on this, on this element in the discussion.
MR. JORDASH: That -- that really was the principle point which is that we are going to receive a statement, which the Prosecution term a proofing note, but which is, in effect, a Rule 66 statement a day before a witness of this stature is called.
Secondly, dealing with the issue of the Defence interviewing the witness, we would like do have interviewed this witness. But we received a very clear timetable. Obviously not the Prosecution's fault, but volcano's fault - if I can put it that way - that he was going to arrive and the Prosecution would need a day and then we would be expected be to be in court to cross-examine him. So we haven't had the time to 4349 interview him.
I would like to interview him, especially in light of this situation where the Prosecution have not asked him about various exhibits except to see whether he would authenticate them.
And if I might just make a comment about this authentification process, inevitably, in our submission, this witness will authenticate documents not through just form but through substance. And in our submission we're entitled to that substance and disclosure of that substance so that we can think about it and take instructions from our client prior to him coming to the witness box to give that evidence. He will not come into the witness box tomorrow and simply say, I recognise this, it looks like a VRS report. He will come in and say, I recognise this, it looks like a VRS report, and I also remember the -- some of the facts which underpinned this report.
That's what this witness will do. And, in our submission, by the time this witness has gone through this huge volume of reports, we will have a huge volume of evidence which is contained in the witness's mind, not yet committed to paper, not disclosed to the Defence, leaving us completely hamstrung.
Those are our submissions. Thank you.
JUDGE ORIE: Mr. Petrovic.
MR. PETROVIC: [Interpretation] Your Honours, by your leave, I am a bit surprised that after 58 minutes of discussing this we have only then find out that there was a conversation which took place with this witness that was substantial. 4350 In addition, yesterday, we sent a letter to Mr. Groome, asking him to inform us whether the OTP spoke to this witness. I haven't checked my mail in the last couple of minutes, but before that, we did not receive anything in response to our request of last night. So we are being prejudiced here. Mr. Groome is going to give us this proofing note tonight. When are we to go over it? When are we going to consult our client on this? We are supposed to start trial tomorrow at 9.00.
Mr. Groome was supposed to tell us this an hour ago at the very beginning of this hearing, and that would have saved us this effort. Thank you, Your Honours.
JUDGE ORIE: Mr. Jordash, have you had any time - and I'm just trying, again, to find what Mr. Groome said about your wish to interview the witness.
When did you seek to interview the witness?
MR. JORDASH: I raised this issue with the Prosecution on the last court session, and my -- our intention was to write a letter accordingly. Then we were informed about the flight difficulties and so we sat and waited until the timetable was clear before making a request. And it became very quickly apparent that the witness was going to arrive very late. And so once that -- once we had certainty about that, then it was clear that we wouldn't have time.
JUDGE ORIE: Yes. But you didn't seek to interview him at any earlier stages?
MR. JORDASH: We -- 4351
JUDGE ORIE: Well, the witness was on the 65 ter witness list for a while, although it's clear to the Chamber that you considered the time when he was scheduled now to be too short.
But I'm asking, therefore, whether at any earlier stage you sought access to this witness for the purposes and -- of an interview.
MR. JORDASH: No. Because the reason -- and if I may explain the reason, the reason for that is as soon as we were -- we intend to interview witnesses, but we wait until they're brought to The Hague and are in the Prosecution or WVS custody. And at the point it is an efficient use of our resources to interview them here, rather than travel into the former Yugoslavia to interview them.
So that was our approach -- we understood that that was the approach this -- the ICTY generally took or that was taken at the ICTY generally, if I may put it that way.
Could I just add one thing, Your Honours.
JUDGE ORIE: Yes.
MR. JORDASH: If Your Honours are completely against us on the first two, then what would be useful is that the witness is adjourned for a day at least to allow us an opportunity to interview him. Because there are a number of documents the prosecution wish to put in, which they say speak for themselves, which implicate the accused. And it would be useful to know what the witness has to say about those documents. So that would be our third limb, if you like, in our application.
JUDGE ORIE: Mr. Petrovic, do you join in the third limb?
MR. PETROVIC: [Interpretation] Your Honours, with all due 4352 respect, the third request doesn't make too much sense, at least not from our point of view.
If this witness is here to testify, if he is heard in examination-in-chief, he also has to be cross-examined, irrespective of the fact that this concerns the interview with the witness. The fact is that the witness has already answered a substantial questions put to him by the OTP. When we see what was answered, we can then discuss the situation. But the situation is now different than it was when we entered the courtroom earlier today.
I don't think that one day we'll solve anything. If there was an interview with the witness and if the witness has information that he shared with the OTP, then we come to the initial request by Mr. Jordash and that is for us to be given adequate time to examine the statement of this witness.
We were simply not informed well in time as to what was going on with the witness, that he was interviewed, and that he shared information with the OTP.
[Trial Chamber confers]
JUDGE ORIE: The Chamber wants to consider the application, the request, and hopefully will deliver its decision in -- oral decision, just this position, in the next 10 to 15 minutes. Whether we can reach a decision in that period of time is still uncertain; but if not, we'll certainly inform the parties.
But we'd like to consider it. Mr. Groome, one very practical question: Have the witnesses, 4353 which are scheduled for next week, have they arrived already in The Hague?
MR. GROOME: One is due do arrive tomorrow morning. But, Your Honour, because of that particular situation of that witness, it is -- the person is going to remain here until the security situation can be assessed from here after he testifies. So there is some flexibility with the next witness.
JUDGE ORIE: Yes.
MR. GROOME: And, Your Honour, just one thing: While the Chamber is deliberating, I'm happy to meet with Defence counsel right now and go over the notes that the man -- what General Milovanovic has said, and I will type them up as soon as I leave here. But I'm more than happy to -- I mean, the ink is still wet on these notes; I'm happy to provide the information that he's provided during the break.
JUDGE ORIE: Well, whatever our decision will be, that needs to be done anyhow. So why not have it done in the next 15 minutes. Are the parties available to meet with Mr. Groome so as to be informed about the results of what seems to be a meeting which -- well, was at least limited in time?
We'll deliberate on the matter, and hopefully we'll be back in 10 to 15 minutes.
I'm aware that this goes beyond the usual 75 minutes, which Mr. Stanisic is medically reported to be able to -- to be in court. We stand adjourned.
--- Recess taken at 6.08 p.m. 4354
--- On resuming at 6.38 p.m.
JUDGE ORIE: It took a while to consider the oral motion. I'll just briefly state what our decision is; reasons in more detail to follow.
The request that the examination of the witness would be postponed entirely is denied.
The request that the cross-examination would be postponed that at least additional time would be granted to the Defence to prepare for cross-examination is -- that request is granted, as matters stand now, until next week, Wednesday.
Now, part of that element of the motion relied on what the Defence expected the witness would do. To some extent, of course, that's guessing. But we would know after his examination-in-chief whether did he what you expected him to do, Mr. Jordash. And, of course, the Prosecution is now aware that if you ask certain questions of a witness, then he might give the kind of testimony where you said that you would have difficulties in -- in preparing for cross-examination, if he would not stick to what -- purely authenticity on the form or -- so -- so it's very difficult for the Chamber, at this moment, to already definitively decide, determine, whether the time granted until Wednesday would be sufficient or not. Therefore, the Chamber may - and I emphasise "may" - reconsider that time-limit once we've heard the testimony elicited in examination-in-chief.
That's the ruling of the Chamber on the matter. So, therefore, we would start tomorrow morning at 9.00. 4355 Now, may I take it that you have fully briefed, Mr. Groome, the Defence on what the conversation with the witness has resulted in, the conversation that took place this morning?
MR. GROOME: I fully briefed Mr. Jordash. Mr. Petrovic declined and said he would wait until I write it up and produce it in written form.
JUDGE ORIE: Mr. Petrovic, any reason for this approach, not wanting to be informed unless you have it on paper?
MR. PETROVIC: [Interpretation] Your Honours, during the break I spoke to my client, which means that I spent most of the break time during [as interpreted] his cell. And when I arrived here, my learned friends had already been talking for a while. That's why I wanted everything to be put on paper so that I may look at it at my own leisure, not that I didn't want. Simply that those were the circumstances. That's my client wanted, and this is how I wish to proceed, in order to be -- provide my client with the best possible advice.
JUDGE ORIE: Mr. Groome, are you willing to repeat what you said to Mr. Jordash, to Mr. Petrovic.
MR. GROOME: Yes, Your Honour. I've actually offered to do that during the break as well.
JUDGE ORIE: Yes. Is that offer accepted, Mr. Petrovic? You didn't mention it.
MR. PETROVIC: [Interpretation] Your Honour, I asked Mr. Groome to put everything on paper. I did not think that it would be too much to ask and that it is in the spirit of good practice. If that is a problem, 4356 I'm prepared to listen to Mr. Groome. I don't see a problem. If he spoke with my learned friend, why can't he put everything on paper as it is customary before this Trial Chamber?
If he, however, is not prepared to provide everything in writing, I'm prepared to sit down and listen to what he has to say. So much from me.
JUDGE ORIE: Mr. Petrovic, I think it's common knowledge, especially among lawyers, that an oral conversation takes less preparation time than to put things on paper.
You have an opportunity, I take it, Mr. Jordash, that Mr. Petrovic, if he would be briefed orally by Mr. Groome, that he would have an opportunity to compare with your information, whether he missed anything.
MR. JORDASH: Yes --
JUDGE ORIE: -- compare the information you had received. Mr. Groome, the Chamber -- one second.
[Trial Chamber confers]
MR. GROOME: Your Honour, just so it's clear.
JUDGE ORIE: Yes.
MR. GROOME: I still fully intend to put my notes in writing and disclose them, it's just to give them the benefit of the additional time. And there's one collateral matter, if I could raise with the Chamber before we adjourn. Just -- I want to ask the Chamber to consider something overnight.
JUDGE ORIE: Yes. 4357 Now, Mr. Groome, the Chamber leaves it to you and Mr. Petrovic whether or not to inform Mr. Petrovic in writing or by telling him what you learned from the witness.
The Chamber, therefore, is not putting any pressure upon you to produce the written notes any earlier than tomorrow morning at the start of court. If you want to write them down between 5.00 and 6.00 this night, it's entirely up to you.
Mr. Petrovic, it's for you to choose whether you want to wait until Mr. Groome has put them on paper. If you want to have the advantage of knowing it earlier, then you should listen to Mr. Groome. The Chamber will not accept any complaints about having received the information late, if you would not -- if would you prefer to wait until it's written down, because you can have that information by far earlier.
The Chamber, of course, would like to receive, then, tomorrow, at the start of court, a brief written briefing note.
MR. GROOME: Yes, Your Honour.
JUDGE ORIE: Yes. Before I give you an opportunity to address us, is the ruling clear? Does it raise any further questions?
Then may I also take it that we'll not have the lengthy session tomorrow which we expected. It may perhaps depend on what you find if you go upstairs again, Mr. Groome.
I don't know whether the beginning of the exercise you engaged in with the witness, whether that -- whether that seems to be -- to bring 4358 some results or not.
MR. GROOME: I think it will, Your Honour. And I actually hope to finish in less than two and a half hours.
JUDGE ORIE: Yes. Mr. Groome, in view of the developments, I can tell you that, for the Chamber, it -- well, some weight - perhaps considerable weight - was given to the fact that you had interviewed the witness this morning and went beyond what the Chamber was aware of at the time. If you would want to further interview the witness on any matter, apart from whether that's wise to do after so many hours, because the witness may have needed his concentration for quite some hours, then you should inform immediately, without any delay, the Defence on any further briefing. Are there any further questions in relation to this matter? Any further observations?
Mr. Groome, you wanted to sleep us over something this evening. That's --
MR. GROOME: Yes, Your Honour, General Milovanovic had offered to remain in The Hague after his testimony to review some of these new documents that the Chamber is aware of and speak with other teams, other Prosecution teams. I would ask the Chamber to consider, if he will be here up until next Wednesday, I will not or no member of the Stanisic/Simatovic team would have contact with him, but would the Chamber consider allowing other Prosecution teams to sit down for the purpose of reviewing those new documents that are now in our possession? It would allow him to at least make productive use of the four days in 4359 between.
JUDGE ORIE: Mr. Jordash.
MR. JORDASH: Can I just indicate that we will seek to interview this witness on Monday or Tuesday, so I put that into the Court's hands.
[Trial Chamber confers]
JUDGE ORIE: Mr. Jordash, I just verified what we had discussed, as a matter of fact, among the Judges before, about the possibility of interviewing the witness after he would have given his examination-in-chief and whether we would have to decide on that, because, as you know, the usual -- well, I couldn't say rule, but the good practice is that there would be no contact with witnesses after he has taken a solemn declaration. And we discussed that also in view of the way in which you had phrased your motion. Because the third limb, as you called it, it was our recollection that you said, If you would not agree with one of the other two, then I would like to have a day in order to ... and I now verified whether we deliberated on the right basis and that's actually what you said. You said, If are you completely against us on the first two, what would be useful is that the witness is adjourned for a day, at least, to allow us an opportunity. We thought that we didn't have to consider that request anymore because we were not completely against you on the first two, because we granted the second one. And under those circumstances, the Chamber is not inclined to make an exception to the rule that you would have an opportunity to interview him.
Now, I don't think that there will be any chance to interview him 4360 before tomorrow morning, 9.00, because we would not have disallowed you to interview him then, so if you find -- but I see it's close to 7.00 -- but the Chamber will not make an exception to that good practice.
MR. JORDASH: Your Honour, yes. I hope my application didn't sound ungrateful.
JUDGE ORIE: No, not at all. But I just wanted to verify whether what we did, without having the advantage of a transcript available to us, whether our recollection of how you phrased the third limb, where Mr. Petrovic was not that much interested in the third limb, whether our recollection was right or whether we will to reconsider that. There is no need to reconsider it.
MR. JORDASH: No, it was right.
JUDGE ORIE: Now, what I would like to know from the Defence is whether -- whether they would oppose that these days are used for interviewing the witness, but not by anyone of the Stanisic/Simatovic team, and with a clear commitment that no information - at least not for the next week - will be received as a result of that by any matter of the Stanisic/Simatovic team. Therefore, a Chinese wall that should be strong.
Any objections against that? We still have - and I think that that's clear already from our earlier decision - it could well be that at any later stage, not knowing yet what is in the newly received documents, not knowing anything, that the Prosecution might request to re-call the witness at a later stage to seek further evidence from this witness on this still -- on this - could I call it a black box at this moment - not 4361 knowing what is in there.
MR. JORDASH: If Your Honours' query concerns -- let me put it differently. We would be content with any further interviewing provided it didn't touch upon the issues which the witness will testify to in this case.
JUDGE ORIE: Yes. So if we're talking -- it might be very difficult, if you are going through a diary, that you suddenly come across a matter -- if it is translated yet, or I don't know how you are going to technically do that -- if you come across a matter and -- which might touch upon an element. But we do not know whether those who are interviewing the witness, then, I do not expect them to be fully briefed in ever respect on what the relevant issues of this case are but, rather, focus on their cases and then not to community in any way with the Stanisic/Simatovic/Prosecution team.
If that -- if such a commitment would satisfy you, Mr. Jordash.
MR. JORDASH: Yes, it would satisfy us. Thank you.
JUDGE ORIE: Yes. Mr. Petrovic.
MR. PETROVIC: [Interpretation] Just briefly, this Defence does not have any doubts that the OTP team will behave in the way you have just explained.
However, our assumption is that the teams interested in speaking to the witness will broach subjects and in view of the ongoing trials can not differ much from the expected topic of evidence by General Milovanovic before this Trial Chamber. If the Trial Chamber has 4362 decided that before witness -- Wednesday he can speak with other teams, I would kindly ask for our Defence team - and I believe that the Stanisic request will be the same - to be informed or, rather, to be provided the proofing notes of those meetings, because we would like to see what was discussed.
If the Trial Chamber does not deem this to be adequate, at least we would like to be informed about the course of the interview and whether subjects broached upon in the interview would be of some importance for the proceedings going on before this Trial Chamber. Thank you very much.
JUDGE ORIE: Mr. Jordash.
MR. JORDASH: We agree with that suggestion.
JUDGE ORIE: Mr. Groome, was that agreeable to you?
MR. GROOME: Yes, the Prosecution's agrees to this Chinese wall, the prosecution agrees to provide a statement -- any statement that's produced, and the Prosecution notes that the initial interview is simply to understand conventions used, note-taking, page numbering, and things like that. So it may not even touch upon any specific issue related to any case for some time.
JUDGE ORIE: And would you be opposed to, again, sharing that information with the Defence. Because I can imagine if you really go to the substance of the matter, that you could then cross-examine the witness on the matter and then later say that there's no need to recall him anymore. That would create, perhaps, a bit of an odd situation. But, Mr. Groome, if you say, We'll limit ourselves rather to -- 4363 rather superficial matters without going into -- deeply into the substance, I can imagine that you would share that, and you committed yourself to sharing that with the Defence then?
MR. GROOME: Just so that it's clear, what I would share, whatever draft statement, whatever stage it's at on Tuesday, I will provide that. And when it's ultimately finalised, I will provided that.
JUDGE ORIE: Yes. And, of course, I take it that you would keep the possibility open to re-call the witness if that new material -- if the black box, once opened, would create entirely new situations.
MR. GROOME: Well, again, Your Honour, if he doesn't cooperate with this team -- I mean, if I thought it required a subpoena, that it was that important, then I would make certain applications.
JUDGE ORIE: Yes. So, therefore, other OTP teams can interview the witness in relation to what I briefly called the black box, the diaries. They should avoid and abstain from any contact with the Stanisic/Simatovic team on the results of that. Not one word. A firm Chinese wall. What they'll do is they'll inform, preferably in written form, the results of that as -- well, let's say, Tuesday, 5.00, to the Defence teams in Stanisic/Simatovic.
That's, then, the ruling of the Chamber. Anything else?
MR. JORDASH: Do we start tomorrow in the morning, Your Honour?
JUDGE ORIE: We'll start tomorrow at 9.00 in the morning.
MR. JORDASH: Thank you.
JUDGE ORIE: That would be in courtroom -- let me just check. 4364
[Trial Chamber and Registrar confer]
JUDGE ORIE: We adjourn. And I highly appreciate the cooperation of interpreters and technical staff, transcribers, but also security, for staying with us for such a long time where it was scheduled to stop earlier.
We stand adjourned, and we resume tomorrow morning at 9.00 in this same courtroom.
--- Whereupon the hearing adjourned at 7.05 p.m., to be reconvened on Friday, the 23rd day of
April, 2010, at 9.00 a.m.