¹¹⁰⁷⁶ Tuesday, 8 February 2011

(Open session)

[The accused entered court]

--- Upon commencing at 2.19 p.m.

JUDGE ORIE: Good afternoon to everyone. Madam Registrar, would you please call the case.

THE REGISTRAR: Good afternoon, Your Honours. Good afternoon, 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. Before we continue to hear the evidence of Witness JF-024, I'd like to briefly deal with a few procedural matters.

Yes, the first one. In relation to the answers of Witness JF-024 about before or after Operation Storm, there was an issue of whether the parties would agree on that. I do understand that there is agreement between the parties, that they stipulate that Operation Storm started and may I take it that you agreed on the 4th of August, 1995. I think hostilities, operational activities, started in the very early morning hours of that day. That's agreed and hereby on the record.

MR. GROOME: Yes, Your Honour.

JUDGE ORIE: Thank you. Then, Mr. Jordash, two times ten minutes; you get that later today. We do that before a break. Then you'll get exactly the 20 minutes. ¹¹⁰⁷⁷

MR. JORDASH: I don't know if it's inconvenient if I request that it be done tomorrow.

JUDGE ORIE: We'll do it tomorrow.

MR. JORDASH: Thank you very much. Then as far as Witness JF-052 is concerned, the Chamber understands that the Simatovic Defence has informed the Prosecution but also the Chamber that it would not request the re-call of Witness JF-052, which means that the Chamber has to instruct VWS to inform the witness that the instructions given earlier not to communicate with anyone about his testimony are lifted -- are hereby lifted and VWS is invited to inform the witness.

Mr. Groome, the Prosecution, by e-mail of the 4th of February, has indicated that it would withdraw Witness JF-020.

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

JUDGE ORIE: Therefore, the Chamber hereby declares moot that part of the Rule 92 ter motion of the 25th of May, 2007, which relates to Witness JF-020.

MR. GROOME: Thank you, Your Honour.

JUDGE ORIE: Then, Mr. Jordash, you have indicated on the 28th of January through an informal communication that you intended to file a motion seeking an order from the Trial Chamber for disclosure of the existing information as indicated by Mr. Theunens in his response to your questions and you would do that in due course. Could you tell us what due course practically means.

MR. JORDASH: Well, it depends very much on Your Honours' ¹¹⁰⁷⁸ decision on the outstanding motion to suspend all matters other than the remaining witnesses.

JUDGE ORIE: Yes. Now, that matter, of course, has been complicated because the matter which was before the president is now before the Chamber, so it doesn't give us any guidance any more, that is, about the financial matters. We have to look at it in context.

MR. JORDASH: Well, Your Honour, the reason we -- I don't know if this is helpful or not, but the reason we filed it in front of Your Honours was so that Your Honours could see the full picture, although we still maintain that the two can be decided separately.

JUDGE ORIE: Yes. Now, let's be -- those matters have been raised at a relatively late stage. The Chamber will carefully look at it. And, of course, we don't have the whole of the picture; at the same time we are still waiting for an answer by the Victims and Witness Section -- from OLAD. Until we have suspended anything, matters are not suspended. That sounds as if it goes without saying. We are talking here about a -- you are seeking an order from the Trial Chamber for disclosure of existing information. That is not a very complex matter. Apparently you have clearly identified what your problem is in relation to Mr. Theunens.

[Trial Chamber confers]

JUDGE ORIE: Having consulted with my colleagues, the Chamber expects you to file that within, well, let's say preferably this week. And if you are unable to do that, then by next Monday.

MR. JORDASH: Your Honour, yes. ¹¹⁰⁷⁹

JUDGE ORIE: This Monday. This is not to ignore or to -- but at the same time we are trying to resolve the matter you've raised as quickly as we can, but we can't do it in half a day. And meanwhile we'll proceed, although we'll certainly keep in mind what your request is and we'll certainly not ignore that. We'll look at it always in the context of what is there before us.

Next item. Mr. Groome, the Chamber noted that you have with the present witness not tendered all the related exhibits. 65 ter numbers 1234 through 1237 have not been tendered. That may be a well-considered decision, I just draw your attention to that. And if it is as we expect, well-considered, then it needs no follow-up. If, however, it would be a mistake, then we might -- then at least you are aware of it by now.

MR. GROOME: Your Honour, I thank you for pointing that out to me. And if I could have an opportunity during this first session just to review my notes and I can report to the Chamber at the end of this session.

JUDGE ORIE: Yes. Finally, the communication between the Simatovic Defence and the Prosecution about the Theunens exhibits. D183 and D195, where the Prosecution would like to receive the answers to the request for assistance launched by the Defence, dated the 10th of March, 2008, have you received the information you needed, Mr. Groome?

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

JUDGE ORIE: Mr. Bakrac, I thought you would sit together, and I didn't ... ¹¹⁰⁸⁰

MR. BAKRAC: [Interpretation] Yes, Your Honours. We did have a meeting with the OTP yesterday in the afternoon between 5.00 and 7.00. I think that the meeting was a constructive one. And we are currently waiting. In our old correspondence before Mr. Petrovic and I got involved in the case, there was some important information. We cannot find that correspondence. And we sent it to the National Council for Co-operation with The Hague Tribunal and as soon as we get a reply from them and the other material, we will inform the Prosecution. We are doing our best to obtain it as quickly as possible.

JUDGE ORIE: Does this mean that due to the complications caused by the passing away of Mr. Jovanovic, that you couldn't find the answer given to the Defence by the Serbian authorities?

MR. BAKRAC: [Interpretation] Yes, that's fully right, Your Honours. I found a notation that these documents were part of the request that was resolved on the date you mentioned, 10th of March, 2008. However, I was unable to find in the documents that remained after the late Jovanovic, I was unable to find the request and the reply based on which one could see that these two documents had been obtained from the National Council for Co-operation. This is why I applied to them once again, asking them to confirm that it was them who had sent those two documents to the Defence.

JUDGE ORIE: I think Mr. Groome wanted more. Mr. Groome wanted a copy of the response to the RFA.

Is that right, Mr. Groome?

MR. GROOME: Yes, Your Honour. ¹¹⁰⁸¹

JUDGE ORIE: Okay. So instead of seeking a confirmation, perhaps you ask for a copy of their response to your request for assistance. Now, have you asked this before, or is it now that you're asking?

MR. BAKRAC: [Interpretation] No, Your Honours. We asked for that just now, not earlier, because I had it written down that this had arrived on the 10th of March, and I believed that we had it in the documents that remained after the late Jovanovic. However, once I went through those documents, I couldn't find it. And as soon as I realised that, I applied to get a copy of that reply of the 10th of March, 2008.

JUDGE ORIE: Yes. Now, the reason why I was asking, because you used the words "once again" on page 15, line -- page 5, line 16 and 17. May I take it that this matter can be resolved easily within one or two weeks? Because it's difficult to understand that such a copy could not be produced on a relatively short notice.

The other matter, in the same context, was information about documents collected by the Defence investigator from the potential Defence witness. We have a series -- D190 had been resolved because you had provided the information, Mr. Bakrac. For all the others, that is, D167, D174, D182, D185, D189, D191 through 193, and D195, have you given the information Mr. Groome asked for?

MR. BAKRAC: [Interpretation] Your Honours, I will reply to your first question. I hope -- I sincerely hope that within a week, two weeks at the most, we would receive a copy of this request -- rather, a copy of the reply from 2008. That's the first question.

The second question is the evidence provided by potential ¹¹⁰⁸² witnesses to the investigator. We spoke about that to Mr. Groome yesterday and I asked him whether the information as to from whom these documents had been obtained would be enough to have them admitted into evidence, and Mr. Groome and his team, if I understood them well, said to us that that wouldn't be sufficient. Then we agreed, and if the Chamber doesn't see a problem with it, that these documents should remain MFI, marked as MFI, until these witnesses come to testify here at which point in time we could admit these documents into evidence. It is not that important for the Defence -- I don't know what your position is, Your Honours, but for the Defence it is not vital to have these documents admitted at this very point. If the information about their provenance and from whom we had obtained them is not enough for the Prosecution, then we will make sure that these witnesses come here to testify and that we can admit these documents through those witnesses.

JUDGE ORIE: Mr. Groome, what's the problem if you know who provided these documents?

MR. GROOME: Your Honour, if the documents were provided by an official source, an official government source, I think the Prosecution probably would not be objecting, but they are provided by individuals. And when it comes to collections of documents held by private individuals that were not found in the archives of the government, the Prosecution would want an opportunity to question those witnesses as to how they came upon those before -- upon those documents prior to withdrawing its objection to those documents. ¹¹⁰⁸³

JUDGE ORIE: Mr. Bakrac, the Chamber still doesn't understand that if you tendered these documents that you don't want to tell the Chamber, apart from telling Mr. Groome, where you obtained them from. Why don't you just tell it? You asked the Chamber to decide on admission, you tendered the documents, and then you say, Where I got them from, I'm not going to tell you, or perhaps later or ... why is that?

MR. BAKRAC: [Interpretation] Your Honours, I can consider this with Mr. Petrovic and with Mr. Simatovic. I can consider this situation with them. Yesterday when we spoke to the OTP I told them I would tell you from whom I obtained them if you tell me that you wouldn't object to their use. They said it wasn't sufficient and then I said, Well, they will then remain MFI until we bring in these witnesses. But if you wish me to do that, I will reconsider this with Mr. Petrovic and with Mr. Simatovic and disclose to the Prosecution the required information.

JUDGE ORIE: Yes, because the Prosecution, in order to form an opinion about whether or not they oppose, they are asking for certain information. But, of course, apart from what the Prosecution says, of course the Chamber, who has to decide on the admission, whether or not there are any objections or not, the Chamber would like to know where the evidence comes from as well. So it's not only -- although that's how it was initiated at this moment, it's not only a matter of you providing information to Mr. Groome, but also -- it's also a matter of you tendering documentary evidence, asking the Chamber to decide to admit it and then not to tell us how you obtained it, which means that it's -- finally, if Mr. Groome forms an opinion about authenticity or ... of ¹¹⁰⁸⁴ these documents, it's finally -- it's not Mr. Groome who decides on whether they are authentic or not, even if he would give up his objections. And the Chamber might want to know, and perhaps becomes more and more interested hearing the whole discussion, to know where these documents come from.

Please reconsider your position and tell the Chamber later today whether you are willing to give us the source, and to Mr. Groome as well. And then I do understand that in your negotiations with Mr. Groome you can put conditions like, if you want this, we only do it if you would not further object, but, of course, the Chamber is not a negotiating partner. The Chamber would just very much like to be informed. We leave it to that at this very moment.

Yes, Mr. Bakrac.

MR. BAKRAC: [Interpretation] Your Honours, just a minute or two more of your indulgence, please. I have been avoiding to talk to you about our situation, but now that we've touched upon this, I want this to be put on the record. As you know, Mr. Petrovic and I got involved in this case when the Prosecution case was already underway. We never had opportunity to work with these witnesses as Defence witnesses. We had no time and no possibility to do that. We contacted them via investigators only on a limited issue of some witness's testimony, if we believed we could get some information from them to verify the credibility of witnesses who testified here.

I had to inform you of this, namely, that our contact with these potential witnesses was extremely limited. It really boiled down only to ¹¹⁰⁸⁵ the upcoming witnesses and not to the preparation of our Defence, and this is why we never had a chance to talk to them about these documents, the documents that our team obtained in order to be put to some witness. However, I will consult my colleague Petrovic before the end of business today, and our client Mr. Simatovic, and I will give you our position. And thank you for granting me these additional two minutes, Your Honours.

JUDGE ORIE: Thank you. Then we can move -- unless there's any other urgent matter to be ...

Mr. Groome.

MR. GROOME: Your Honour, I can report on those 65 ters if the Court wishes me to at this point.

With respect to 65 ters 1234, -35, and -36, Your Honour, these photographs are part of P2152 now in evidence, and a description of these photographs can be found in P2151 in evidence, and they can be found in the order that I've mentioned them, on pages 6, 5, and 11. And with respect to 1237, Your Honour, these stills are in evidence now as Prosecution Exhibit P2153.

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

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

(Closed session)

(3 lines redacted) ¹¹⁰⁸⁶

(69 pages redacted) ¹¹¹⁵⁵

(17 lines redacted)

(Open session)

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

JUDGE ORIE: Thank you, Madam Registrar. Mr. Petrovic, could you be a bit more precise about the time you would need tomorrow. You've had now half an hour.

MR. PETROVIC: [Interpretation] Your Honours, I would kindly ask you to allow me for a window of about two hours of effective work. I will try to rephrase my questions overnight in order to be as efficient ¹¹¹⁵⁶ as possible, and I will do my best not to exceed this period of two hours.

JUDGE ORIE: Mr. Groome, which opens the possibility that we could start with the next witness tomorrow. How much time would you need for the next witness?

MR. GROOME: Your Honour, I've been informed by both Defence counsel that they do not intend to cross-examine the witness. And Ms. Friedman will be taking the witness, and she estimates that it will be approximately 30 minutes.

JUDGE ORIE: So that means that we would complete our programme of this week well in time.

Mr. Jordash, then, of course, the two times ten minutes for you we would need. This will also assist the Victims and Witness Section to make their planing with the witnesses.

We adjourn for the day. And we'll resume tomorrow, Wednesday, the 9th of February, at quarter past 2.00 in this same Courtroom II.

--- Whereupon the hearing adjourned at 6.58 p.m., to be reconvened on Wednesday, the 9th day

of February, 2011, at 2.15 p.m.