15021 Monday, 21 November 2011
[Rule 54 bis Hearing]
[The accused entered court]
--- Upon commencing at 3.11 p.m.
JUDGE ORIE: Good afternoon to everyone. Madam Registrar, would you please call the case.
THE REGISTRAR: Good afternoon, Your Honours. This is case number IT-03-69-T, the Prosecutor versus Jovica Stanisic and Franko Simatovic.
JUDGE ORIE: Thank you, Madam Registrar. I'd like to move into private session.
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THE REGISTRAR: We are in open session, Your Honours.
JUDGE ORIE: Thank you. For today a hearing has been scheduled related to a motion that an order should be given by the Chamber under Rule 54 bis to the Republic of Serbia. There are a few matters to be discussed before we really start with the -- with the hearing itself, and for that purpose, I would very much like that Mr. Ignjatovic, but Mr. Ignjatovic alone, is escorted into the courtroom.
[Mr. Ignjatovic entered court]
JUDGE ORIE: Good afternoon, Mr. Ignjatovic. Just for the record, you are Mr. Dusan Ignjatovic, head of the Office of the National Council for Co-operation with the ICTY of the Republic of Serbia. Is that correct?
MR. IGNJATOVIC: That's correct, Your Honour.
JUDGE ORIE: Yes. Mr. Ignjatovic, before we start with the hearing itself, let me first -- first establish that the Chamber has received a notice of objection in relation to the Trial Chamber I order from the 4th of November, 2011, but before we start hearing further submissions by you and perhaps answers to questions by you, I'd first like to briefly move into private session.
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THE REGISTRAR: We are in open session, Your Honours.
JUDGE ORIE: Thank you, Madam Registrar. 15032 Could Mr. Obradovic be escorted into the courtroom.
[Mr. Obradovic entered court]
JUDGE ORIE: Officially, Mr. Panic, I have not introduced you yet. I do understand that you are Mr. Miroslav Panic. Then, welcome to you, as well, I take it, Mr. Obradovic. Could I just confirm with you that you are Mr. Sasa Obradovic, legal advisor at the Embassy of Serbia in The Hague?
MR. OBRADOVIC: [Interpretation] That's correct, Your Honour.
JUDGE ORIE: Please be seated, Mr. Obradovic. I'd like to start first of all with the issue of the Simatovic request for an order under Rule 54 bis. Earlier, Mr. Bakrac, you said you had withdrawn that request. When did you do that and how did you do that?
MR. BAKRAC: [Interpretation] Your Honour, I have to apologise because Mr. Petrovic was supposed to appear in this session. However, his plane was late due to fog, foggy conditions, so what I can say is that he did that in one of his communications to the OTP and one of the representatives of the Trial Chamber. That happened sometime last week, but I'm not sure at this point when exactly. However, if you want me to do so as a representative of the Simatovic Defence, I can repeat it now for the record that we are withdrawing our request, our application.
JUDGE ORIE: Yes. Of course, a withdrawal should be put appropriately on the record. But before I would suggest or invite or -- I'd first like to raise the following matter: It is true that there has been an informal communication in which it was announced that the 15033 Republic of Serbia and the Simatovic Defence had finally agreed on the matter, and that also the Office of the Prosecution would agree if the request for an order under Rule 54 bis would not be further pursued. Is that correctly understood?
MS. FRIEDMAN: Yes, Your Honour.
JUDGE ORIE: Yes. Now, the only thing I would like to add to this is that if you do agree that you'll be satisfied with a non-complete, unredacted [sic] exhibit, of course, that does not in itself deprive the Stanisic Defence or the Chamber from its desire to look at the unredacted document. Now, the Chamber has repeatedly expressed as its view that we should work to the extent possible on the basis of unredacted documents, even if they would not be publicly unredacted but only for use in court.
Now, of course, the Chamber has no knowledge of what is redacted in the documents you are talking about because we haven't seen them and we do not -- we are not seeking to see them at this moment, but what I would like to emphasise is that if you now say, I withdraw my request for an order so as to receive unredacted copies, that that might not be the end of the story because the Stanisic Defence, once seeing what the document is and to what extent it is redacted, or the Chamber might take a different view. Again, I can't speculate on it, it may well be that it is a document where everyone fully understands why there are small redactions, but the Chamber doesn't know. I do not know to what extent the Stanisic Defence is aware, but the mere fact that you and the 15034 Prosecution and the Republic of Serbia agree on the matter does not mean that if you tender a redacted document, that we would be satisfied on the basis of your agreement.
Yes, first Mr. Bakrac.
MR. BAKRAC: [Interpretation] Your Honour, I understand fully what you have said and I do realise that the final say is up to the Trial Chamber and that the Trial Chamber will decide in the end whether such documents will be admitted into evidence. And I'm fully aware that perhaps the Stanisic Defence may object in some way, but what I can say now is as far as we could see, those redactions related to names of operatives, nothing further.
So we thought that it was practical -- practicable to withdraw our motion at this point in time, and I believe that already with a second or the fourth witness, we will be able to work with these documents, and then if the Trial Chamber is not satisfied that the document so redacted should be admitted into evidence, then we could still have the option to then address the Trial Chamber and request under Rule 54 bis -- or, rather, to revert to our motion for binding order and request the unredacted versions. In other words, we were trying to make things simpler, but if you think that this makes it more complicated, we can still stand by this motion for binding order. However, it was my opinion that, at this point in time, we can continue with the motion withdrawn.
JUDGE ORIE: Of course, there's a possibility, Mr. Bakrac, that you ask for the motion not to be decided this moment because you are 15035 satisfied, and that saves you reintroducing the whole matter at a later stage if need would be.
MR. BAKRAC: [Interpretation] Yes, Your Honour, I understand. If that is your instruction, I fully accept it.
JUDGE ORIE: You are the master of your own motions. Im not instructing you, I'm just perhaps giving some practical suggestions.
MR. BAKRAC: [Interpretation] Your Honour, I accept that it is more practicable then to proceed in that manner, but I wasn't sure that that would satisfy you. When I say you, I mean the Trial Chamber. And I do accept that that is more practicable, and I would like to state now for the record that we agree that no ruling be made and no decision taken on our motion for binding order up until we see how the things proceed.
JUDGE ORIE: Yes, that's then put on hold. But whether that is enough, we'll hear from Mr. Jordash because he will be ...
MR. JORDASH: Obviously, we'll need to have a look at the Simatovic documents, but I -- what I would say is this: That the reason that we are, in part at least, here is because the Prosecution objected to the redacted documents that we were tendering at the beginning of our Defence case. Your Honour will recall on the very first day of our Defence case that was raised by the Prosecution. It was raised subsequently by the Prosecution at the informal hearing on the 20th of July of this year, and on that basis we agreed, the Stanisic Defence, to pursue the matter until we had unredacted documents or we had a court order to say that we were not entitled to them. And so 15036 it is strange, to say the least, that now the Prosecution's position seems to have changed completely. And this is relevant because it's relevant to what we have just been discussing, but it's also relevant to the issue of the Prosecution's own documents. To urge a position on the Court in relation to the Stanisic Defence and then to sail a different boat in relation to the Simatovic team and also in relation to themselves would seem to be a rather strange position.
JUDGE ORIE: Yes. That's clear. At the same time, I do not hear - as a matter of fact I hear the contrary - that you say we should issue the order now in relation to the Simatovic materials, you say let's first have a look at it and see what it is. And of course, the Chamber could not possibly decide unless it would have been presented to us. I hope that everyone understands that in order to give a judgement on whether redactions are acceptable or not, that of course we would have to see the document.
MR. JORDASH: Absolutely. And there's no criticism whatsoever of anyone. I'm just putting it on record that the Prosecution's position has to at some stage in our submission be explained.
JUDGE ORIE: Yes. Ms. Friedman, perhaps very specifically, the Simatovic documents and, if you want to further respond to Mr. Jordash, you have an opportunity to do so.
MS. FRIEDMAN: Yes, Your Honour. Well, with respect to the Simatovic 54 bis motion, I just wanted to clarify the Prosecution's position, which we did send in an informal communication last week, and 15037 I'll read it now.
"While the Prosecution generally opposes the admission of redacted documents into evidence, in this particular situation, after careful analysis, we have reached the conclusion that the information contained under the redactions in this file could not reasonably have a material impact on matters related to this trial. We therefore, defer to the Chamber's discretion with respect to the admission of the redacted version of this file."
And I think that that also addresses to some extent Mr. Jordash's submission, but of course, we'll be prepared to address it further in due course.
JUDGE ORIE: Yes, now we are here, of course, primarily to hear the representatives of the Republic of Serbia and to see whether, in view of the answers and responses given by them, whether there's any need for further submissions.
Now, I'd like, therefore, to move to that subject but I'll only do that after I have informed the parties that the Chamber follows your suggestion, Mr. Bakrac, to put your request on hold.
MR. BAKRAC: [Interpretation] Your Honour, if I may be of further assistance, let me just say that I have with me the case -- our Case Manager and we will send, both to the Trial Chamber and the Stanisic Defence, the complete document so that you can have it available as soon as possible, and my apologies for not having done it so far.
JUDGE ORIE: Well, Mr. Bakrac, I wonder whether that is necessary. Why not keep your documents with you until you want to tender 15038 them rather than a -- a different matter is whether you want to give them to the Stanisic Defence so that they can consider that. But the Chamber is primarily interested in seeing the redaction once you use these documents as evidence when presenting your case. So I'm not -- certainly not urging or encouraging you at this moment to send that material to the Chamber.
MR. BAKRAC: [Interpretation] I understand, Your Honour. Thank you. I will talk to Mr. Jordash and we will agree on how to proceed. Thank you.
JUDGE ORIE: Yes. Now, we now come to the core of the request. And I would like to deal with one matter first, which is the following: The Defence has categorised the material it is seeking in the -- three categories. We find them in Annex A, Annex B, and Annex C to the motion. And just to put it very short, the first is the category of documents you received but with redactions. The second category is the category of documents you received but not complete documents, but incomplete documents, excerpts. The third category is the document which you have requested which, as you say in Annex C, you have not received.
Now, what complicates matters a bit is that the Republic of Serbia has followed a different categorisation, apart from that, it has pointed at the fact -- and perhaps we can hear from the Stanisic Defence on that at a later stage. You have explained that there is some overlap in the categories of the documents presented by the Defence. But you have categorised it in a different way, that is 15039 category 1, category 2, and category 3. What is needed first of all is that, I would say, here the Stanisic Defence and the Republic of Serbia carefully check whether by these different categorisations, whether now all the documents are dealt with. That is to simply say that any document which is found in Annex A, that you sit together and that you say, okay, the first document in Annex A is for us category 1, or category 2, or category 3, so as to finally agree on whether all the documents have been classified either in the Defence's categorisation, and in yours, because otherwise we would have a document which, well, let's say, is category B for the Defence but has no category at all in the submissions made by the Republic of Serbia.
So I think that is the first thing that has to be done anyhow, Mr. Jordash. I don't know whether you agree, and I'm also addressing Mr. Ignjatovic, to make sure that not one of the documents falls between the different categorisations and isn't there anymore.
MR. JORDASH: Well, I certainly agree that we have to be sure that each document is covered, but what we would suggest would be the easier and more convenient approach would be that the Serbian government detail document by document what their concerns are. At the moment --
JUDGE ORIE: Well, that's one step further. That's -- we are now dealing with -- but first to see whether it's category 1, category 2, and category 3 which is a general categorisation dealing with their concerns.
MR. JORDASH: Well, we would find out, I think, very simply if the Serbian government dealt with the documents on a document-by-document basis, whether all documents had been covered by their reasoning. That's 15040 why I suggest doing it that way, rather than go through at this stage. Because what we would submit is that their approach is a somewhat generalised one and it ought not to be, and one of the reasons it ought not to be is because we -- a document will fall through the cracks. The most important reason is that, in our submission, the jurisprudence depends upon the Serbian government identifying document by document what their principal concerns are. And going from the general assertion of national security interest to specifics, and I think that would be the first stage that I would urge upon the Court.
JUDGE ORIE: Mr. Ignjatovic, Mr. Jordash has explained that he thinks that just giving categories and categories of concerns is not what he considers satisfactory and, therefore, invites you to come with your specific concerns on a document by-document basis.
MR. IGNJATOVIC: [Interpretation] Mr. President, we would respectfully like to stick to general presentations here. We think it would be a good idea for the Trial Chamber to set a dead-line by which, together with the Defence teams, we would go through the documents to see which fall under 54 bis. This 54 bis is, we believe, too far reaching and in some cases unnecessary, and if you, with your leave, I can explain why I think so. What we --
JUDGE ORIE: If I could interrupt you for one moment. It was not on my mind to invite you to deal with individual documents here. That is -- first of all, it's not very practical. So just to avoid whatever misunderstanding that when Mr. -- and that's also how I understood Mr. Jordash's submission, that if he says, We would like to be -- we 15041 would like not to work on the basis of general objections but on very specific objections on a document-by-document basis, that this should not be done in court but outside court and in further session or communication or with the Republic of Serbia.
But I interrupted you, apologies for that. Please proceed. You said that you wanted to explain something. Please do so.
MR. IGNJATOVIC: [Interpretation] That is correct. We believe that for the most part this motion was unnecessary because in our communication with the Defence, especially where the first category of documents is concerned, and we've already said that most of these documents are covered by Annex A, documents that have been disclosed to them in redacted form, so the documents have been received by them. They know the contents of the document, the redactions are minimal. What was the redacted was the source, the names of victims, and very few other redactions. There are very few documents with more information redacted than that. So the Defence team already has a considerable amount of documents.
Together with the Stanisic Defence, on the 19th of August, we made it quite clear to them that with respect to certain documents they requested in order to offer them into evidence, we would be prepared to provide them unredacted with a proviso that we would ask this Trial Chamber to grant special protective measures. That is why we found the Defence's request a bit of a surprise and we did not quite understand it. Its not true that we were not prepared to co-operate with the Stanisic Defence. We have already made available to Mr. Stanisic 15042 hundreds and thousands of documents by our -- prepared by intelligence services. We do not wish to interfere in any way with his Defence case. However, there are certain documents among them that I can only discuss in private session, documents that have already been provided unredacted to the Stanisic Defence, and I really don't see why any 54 bis proceedings would take place concerning them.
In order not to take more of the Trial Chamber's time, we would like you to give us a certain dead-line by which we can sit down together with Mr. Jordash, go through these documents, and then decide where we or they would ask the Chamber to intervene under Rule 54 bis, for the sake of economy.
JUDGE ORIE: Let me, before I give an opportunity to Mr. Jordash, to respond to this. Did I understand your submissions well that a similar system as you suggest now was practiced with the Prosecution; that is, that you give access to unredacted documents, that you specifically invite the party concerned to identify those unredacted documents to be used in court, and that you then would like to have the protection that although the party has seen the unredacted document, that the public will only see the redacted documents. That is what I understand you are offering and that is, as I understand, is also the practice developed with the OTP.
First of all, let me verify whether I understood both your offer and your presentation and the practice with the Office of the Prosecutor.
MR. IGNJATOVIC: [Interpretation] What we would really like, if I may be honest, is that the system that has been working between the 15043 Prosecution and the Stanisic Defence be applied to us as well. If the parties are in agreement to proceed with redacted documents, that it should be accepted by the Trial Chamber, although we understand it is the discretionary right of the Trial Chamber. But if there is no agreement on certain documents, and that is why we were surprised by this 54 bis because we had reached an agreement on the 19th of August. There is a large number of documents belonging to the Information and Security Service of our country and some of these documents that will be used will be made available from category A unredacted. We will give them access to them, but we also want those documents that are not going to be used here to be returned to us. There is no reason why they should remain in their possession. And as you have seen probably in our submission, we requested the Trial Chamber to order that all documents not to be used should be returned. As far as Annex A is concerned, at this moment at least, there is no need to burden the Trial Chamber with these. And then there are also documents from Annex B that have been provided complete, not in part, as the Defence has presented it.
JUDGE ORIE: Mr. Jordash.
MR. JORDASH: I think that there's a conflation of a number of issues there which don't necessarily all fit together. First of all, the reason for this motion, I think, is --
JUDGE ORIE: Let's be very practical. The motion is there and if the Republic of Serbia does not fully understand, then apparently there is a different understanding of the present situation as far as the Republic of Serbia is concerned compared to your understanding. Let's 15044 see, first of all, whether there really is a dispute rather than -- you see my point.
MR. JORDASH: Yes.
JUDGE ORIE: If finally you would continue to disagree, then it might be the point where we'd like to know what you consider to be an unfair representation of facts, but I am first very much inclined to see whether we can find solutions. Solutions primarily aiming at making material as complete as possible available for the Stanisic Defence. That's my purpose and that's my aim. And it's the aim and the purpose of the Chamber.
MR. JORDASH: Well, first of all, I would reiterate that we want the material that we've listed in the motion and how we get there is perhaps less important, but we want it and we say we are entitled to it. Secondly, in relation to the arrangement that the Prosecution have with the Serbian government, first of all, I'm not sure I understand it well enough to be able to accept it as an alternative. I understand that the Prosecution have been to see personnel files. I don't know if they've been to see anything else. I don't know if the arrangement extends to all material from the BIA archives or its predecessor's archives, so that is the first thing. Would we want complete access to those archives? Yes, we would. And not simply in relation to the issue of this motion but in relation to the issue of our efficient investigation and, it would seem, in relation to the issue of equality of arms between the parties.
JUDGE ORIE: But let's focus first on the documents you have specifically included in your annexes, and whether you then would like to 15045 see other archives, that's -- I think the first focus should be on you are complaining that you have had no access to the Annex A documents unredacted. The offer now is: Come and look at them in unredacted form, tell us which ones you would like to use in court, let's agree on the redactions, let's hope that the Chamber then finally is convinced that they are so immaterial if both parties agree on that, of course the Chamber is not anticipating in any way on what it finally will find before it has seen either the documents in redacted or unredacted form, but that is the offer at this moment. Look at it in unredacted format. We'll provide you -- you can -- so without any redactions, you can inspect the documents and then certain conditions are found in the notice of objection, that is, that you would not -- that you would keep them confidential, that you would not use them in open court and then -- unredacted at least, and then we'll further see. If you sit together you can say, well, this one even if unredacted can be made public, another one we'd like you to follow these and these redactions, you've seen what is under it but we would really not want that to be public documents in its entirety. So to -- that's how I understood what was the process conducted with the Prosecution. Apart from whether it covered all of the documents or not, but it's clear that you are seeking at least for the documents in Annex A to have access to the unredacted form and this is what apparently is offered by the Republic of Serbia.
MR. JORDASH: But we've -- we would still say that the Republic of Serbia should either assert a public interest or disclose those documents to us. 15046
JUDGE ORIE: Okay.
MR. JORDASH: But give them to us. We, of course, are subject to protective measures and cannot disclose them outside of the Defence team and wouldn't and have not in relation to other documents, or of course, we can take up the Republic of Serbia's offer but will cost us significant amount of legal time which we've already, in our submission, in many respects wasted trying to deal with this issue over the last few years, which isn't to say, and I don't say, the Republic of Serbia have not been very co-operative on many issues. And Mr. Ignjatovic was right, that we have received a huge amount of disclosure. But where we've got to is that we seem to have an impasse on these documents in the motion and we've argued this backwards and forwards in one respect to another, and we still have not come to a resolution. And what we are seeking now is to stop that argument.
JUDGE ORIE: Okay. Now, before we -- there are a few issues. First, what are the redactions about? I mean, what is the document and what are the redactions? If it says "our operative" and then a name is taken out, then it may be clear that the name of an operative appears there. Now, apparently it's offered to you that you can have a look at it and see whether it's really a name which appears there, and then if you say, well, I'd like to use that, then the Republic of Serbia as we have granted already quite a number of times will protect the name of the operative. Fine, then I think we could proceed, but you say you want the unredacted version to be delivered to you. Of course, you can -- I would say you can try to seek the agreement of the Republic of Serbia. They 15047 may well agree, but urge you to not use the unredacted document in open session so as to protect these data from the public. Of course, there's another possibility that they would say no, you can have a look at it but even we would like that name not to be known even to the parties, let alone the public, and then I think you have to consider whether or not that has any impact on the proceedings. If so, if you say no, that is unfair, that is prejudicial to our Defence position, then of course, you can come back to the Chamber.
MR. JORDASH: If I go and see the document, I may take one view of the redactions. When I come back to this Chamber, the Serbian government may take a one view, the Prosecution may take another, the Simatovic Defence may take another. We are building into the process, in our submission, a whole range of difficulties instead of what we submit is a straightforward approach, which is insist upon your public security interest and let us all decide together.
JUDGE ORIE: Okay. Of course, when you earlier said, I want them, I'm entitled to them, that of course depends on the ruling of the Chamber. You understand that.
MR. JORDASH: It was a submission. It was a submission.
JUDGE ORIE: Yes. Now, if Mr. Jordash would take with him the unredacted copies and give a firm commitment that he would not use them in public but will use them exclusively in order to have the relevant material ready when there's any debate about the matter here in court, would that be something the Republic of Serbia would agree to? Or would be wanting to 15048 consider in relation to not to one of two, but in relation to a -- well, let's say a substantial number of documents because otherwise is it worthwhile sitting together and discussing it.
MR. JORDASH: Your Honour, can I just leap to my feet --
JUDGE ORIE: Yes.
MR. JORDASH: -- Mr. Stanisic would like a break, and I know it's a substantive question that's been asked so perhaps --
JUDGE ORIE: Yes. And perhaps you use, perhaps, the break to see whether -- the Republic of Serbia is not appearing here as a witness, so there's -- nothing is preventing you from contacting them or contacting Mr. Groome to find out how it worked. I'm very much even after -- before the break and after the break, I'm really aiming at solutions rather than further developing problems. And again, Mr. Jordash, I repeat that solutions so as to ensure that the Stanisic Defence has to the extent legally warranted access to all the material it wishes to use in this courtroom.
We take a break and we'll resume at 10 minutes to 4.00. Unless there is something, Mr. Ignjatovic, you'd need to bring to our attention before the break.
[Trial Chamber confers]
JUDGE ORIE: Ten minutes to 5.00, I meant to say.
--- Recess taken at 4.19 p.m.
--- On resuming at 5.22 p.m.
JUDGE ORIE: Before I continue, perhaps it would be wise, Mr. Jordash, that I would give you -- or I would ask you whether the 15049 meeting during the break has resulted in anything?
MR. JORDASH: It has. And thank you for the additional time. I think it was productive.
In relation to Annex A and Annex B and Annex C -- well, let me deal first of all with Annex A and Annex B, the Serbian government have agreed that we can go and view the documents. At that stage we will indicate what we want and any residual dispute can then be brought back before the Chamber.
In relation to Annex C, we have agreed that the Serbian government will indicate in writing what -- why they don't have certain documents. In relation to documents that we have and they don't have, they have indicated that they would like an explanation from us so that they may be able to provide a more full answer concerning why they don't have those documents. So that's the overall position.
JUDGE ORIE: Does that also mean that you are -- principally be inclined to give them an explanation as to the sources of where you got these documents from, because that's what the government is asking?
MR. JORDASH: I will have to consult more fully with Mr. Stanisic about that.
JUDGE ORIE: Yes. I see that point.
MR. JORDASH: There is obviously an explanation on record, so in as much as that explanation has already been given, then of course we can disclose that at the Serbian government. The remainder we will consult.
JUDGE ORIE: Yes. Then this will be part of your further talks, then, I take it, because there was a specific request by the ... 15050
THE INTERPRETER: Can any additional microphone please be switched off. Thank you.
JUDGE ORIE: Yes. It seems that major parts of the motion are now currently then subject to further conversations, I avoid the word negotiations, but conversations between the Stanisic Defence and the Republic of Serbia's government.
Now, what I'd like to do, that is on the basis of the notice of objection to see whether there are any matters which we have to deal with at this moment, and then, as a matter of fact, I think we could start in paragraph 13 because, prior to that, there's an explanation as to the categories. I think we briefly dealt with that. They are explained, what they are. And then I think the real issue starting at 13 comes in 17 because there's the offer and that seems to have been dealt with. That's part of your conversation at this moment.
Now, without urging or encouraging you to further make submissions at this moment, it seems then at paragraph 18 and in 20, there is a kind of a discussion on-going on what you have identified, Mr. Jordash, in category B as excerpts, where in the response of the Republic of Serbia, it is explained that sometimes what seems to be excerpts may well be redacted documents. And then, of course, there's another category remaining where it really is excerpts and not ... Now, I think that is part of your discussions then as well, so perhaps we do not intervene at this moment.
MR. JORDASH: No, in relation to those that are excerpts, as I understand the Serbian government's position, we can see the whole 15051 document and then identify what else we might want.
JUDGE ORIE: Yes.
MR. JORDASH: And then we'll know whether there's any final disagreement.
JUDGE ORIE: Yes. Okay. Then we'll wait for that. Then we have annual reports 1991 not having been archived.
MR. JORDASH: That's the type of document we would ask and we have asked the Serbian government to put into writing an explanation as to why they don't exist.
JUDGE ORIE: Yes. Okay. That is paragraph 21. Let me just have a look. Yes, 22 doesn't raise any additional matter which we should discuss now. Paragraph 23 is a -- there the issue appears to be a general reliance on state security interest where now the new situation apparently you'll have a better opportunity to -- not to stay at the abstract level but come to the concrete level by having a look at the documents.
24 is not a matter which needs our attention at this moment. I think the same is true for paragraph 25, some overlap between categories B and C. Then 26 deals with the yearly report not archived in 1991 and the other reports where excerpts were available apparently which I'll look at.
Then we move to the third category and that is the category where you expect to receive a further written explanation as to the fact that the documents cannot be found, are not found, are not archived, are not found in archives, whatever formulation there is. 15052 Yes, explanation of the origin of the copies. Of course, there we are at, I would say, cross-roads between the domestic legal order and the order in this Tribunal whereas unawareness of the source of the documents could well result in non-admission. I'm not saying that it would, but at least it is a matter which may affect a decision on admissibility if there is a challenge to authenticity and if it is unclear where the documents stem from. That is a matter which is directly relevant for our proceedings, whereas you have, I would say, totally different interest in knowing where the documents were found which are in the possession of the Defence. That's -- I would say these are two related but, at the same time, matters to be clearly distinguished what is relevant for us and what is relevant for the Republic of Serbia.
Then, yes, 29 also deals, with, I would say, your domestic response to the situation. Paragraph 30 is again about the documents not having been found in records and archives. 31 is again a matter of domestic law. And then the conclusion, there are a few observations. Perhaps I move for one second into private session.
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(Open session) 15058
THE REGISTRAR: We are in open session, Your Honours.
JUDGE ORIE: Thank you, Madam Registrar. Mr. Jordash.
MR. JORDASH: In relation to the Serbian government's request that documents are returned to them when a decision has been made not to use them, then, of course, that is precisely what we'll do. We've indicated to the Serbian government that is not likely to be before the end of the trial, but at the end of the trial we have no problem whatsoever undertaking to return the documents to the Serbian government and we understand their concern.
JUDGE ORIE: It is common practice in the law of international judicial co-operation that once documents requested or objects requested are not needed anymore, that they would be returned to the party that provided them under the applicable provisions.
Now, I think that I have nothing at this moment which requires further discussion at this very moment. We noticed that the Republic of Serbia and the Stanisic Defence, and part of it was discussed in private session, will engage in further discussions primarily seeking access to category A and category B documents and seeking further written explanations in relation to category C documents. I keep it as short as that for the time being.
Is there any matter any of the parties would like to raise, and I'll give the Republic of Serbia an opportunity after I've given the parties an opportunity.
Mr. Jordash. 15059
MR. JORDASH: The issue which is outstanding, in our submission, is the Prosecution's position in relation to their documents. If it's going to be the Prosecution's position that they do not seek to have their own documents unredacted, then that places a burden on us because we would like to see those documents and we'll have to do it, unfortunately, then by request to the Serbian government to see all the Prosecution's documents. But I do think given that this was an issue which was raised by the Prosecution and pursued with vigor against the Defence, that the Prosecution ought to put a formal explanation on the record concerning their documents.
JUDGE ORIE: Yes. Is there any way, because if the Chamber is thinking about these matters, it is mainly not aware of the type of the document, the type of the redactions, et cetera, where I can imagine that under some circumstances one could accept or could be satisfied with smaller redactions, whereas in other cases it's far more difficult in view of the type of document, the type of redactions made, whether they look like excerpts rather than by -- as redacted documents. The Chamber, of course, is not in a position, if not specific documents are before it, to make any ruling on that. I would, however, urge the Defence and the Prosecution to see whether they can reach agreements on that as well, and then only when such discussions have taken place and have not led to any agreement or where the explanations are not satisfactory to the other party, that they would then come back to the Chamber and finally we rule on everything you will put before us.
Ms. Friedman. 15060
MS. FRIEDMAN: Your Honour, the Prosecution has not tendered redacted documents other than those that were subjects to permanent redaction that we've discussed on a few occasions, so we are actually not quite sure what Mr. Jordash is referring to.
JUDGE ORIE: Mr. Jordash, this seems to be an invitation.
MR. JORDASH: I'm not sure what that means, permanent redaction. The Prosecution have tendered documents which are redacted. They are not, as I understand it, seeking unredacted documents and we are seeking an explanation from them as to why not. When we've got the explanation, we can then decide whether we not accept that explanation or, if we don't, we can approach the Serbian government to see if we can see those documents nonetheless and -- or we come to the Chamber. But the first thing must be that the Prosecution indicate their position in relation to specific documents.
JUDGE ORIE: Ms. Friedman.
MS. FRIEDMAN: We dispute the assertion we've -- the permanent redactions I refer to is that some documents were redacted years ago and Serbia has explained that a non-redacted version does not exist. This was an exception and it was discussed at the time that it arose on the record. I don't have a record of it before me, but we always seek non-redacted documents and stand by the position that we have not tendered redacted ones but for the ones that we've explained when tendering and there has not been objection.
JUDGE ORIE: So permanent redactions, you refer to documents which were redacted and where you have no knowledge of the existence of 15061 an unredacted copy.
MS. FRIEDMAN: Yes. And where we have communicated and accepted Serbia's explanation that one does -- no longer exists.
MR. JORDASH: Well, perhaps the confusion arises because I think -- I've just spoken to Mr. Petrovic and he is in the same position as me. We've never heard of the issue of permanent redactions. If there has been this communication then --
JUDGE ORIE: I would say it's really a matter to first explore exactly what the dispute is. Apparently, even terms as "permanent redactions" have not been communicated between the parties. Again, whatever remains there to be decided, the Chamber will rule on it. But in view of what I hear now, I think both quantity and quality of that material should be explored between the parties before it makes any sense to bring it to the attention of the Chamber. It could well be that you identified five or seven or ten or 50 exhibits where you say redactions are there which are unacceptable even after having heard the explanation by the Prosecution. We then can have a look at them.
MR. JORDASH: I agree. We'll wait for the explanation.
JUDGE ORIE: For identification and explanation, that's --
MS. FRIEDMAN: Your Honours have ruled on this issue with respect to the bar table motions. One of them at least. So that's where I recall that the issue of these types of redactions was addressed. And we have no issue, so it would be, we submit, for the Defence to point to any redacted documents that we've tendered other than that. Our whole -- the whole purpose of the negotiations that we discussed earlier that we've 15062 had with Serbia was in order to obtain non-redacted versions and that's what we've done.
MR. JORDASH: Sorry, but -- I mean, if the Prosecution are clear about which documents are permanently redacted, why can they not just say that to us. Why do we have to go and search an exhibit list of thousands of documents to find those redactions, then approach the Prosecution? It's easy for the Prosecution to do that.
MS. FRIEDMAN: We submitted that there was no issue.
JUDGE ORIE: It seems that whether it will be better a tea break or coffee break, and then to toss who is going to -- no, no, of course, I should be take be seriously, not tossing who is going to look for it. But please be solution oriented, both parties, so that we can really come to what is important, that is the best quality of the evidence before this Chamber. And evidence being available to both parties as good as possible.
Mr. Jordash, any other matter?
MR. JORDASH: No, thank you.
JUDGE ORIE: Yes. No further matter?
MS. FRIEDMAN: None from the Prosecution.
JUDGE ORIE: Then any -- Mr. Jordash, you are on your feet.
MR. JORDASH: No matter which needs to detain the Serbian government officials.
JUDGE ORIE: Okay. That's fine. Then, Mr. Ignjatovic, is there any matter you would like to raise at this moment? It seems that good initiatives are developed during the 15063 break. I don't know whether it was tea or coffee, but ...
MR. IGNJATOVIC: [Interpretation] No, we have no issues and we hope that we will resolve any if there are.
JUDGE ORIE: Then, Mr. Ignjatovic, the Chamber is aware that travelling today was not easy. The Chamber is also aware that what you did is, after you had considerable delays in getting to the Netherlands, that you didn't take time for yourself but that you immediately went to this courtroom, which is highly appreciated by the Chamber being fully aware of the difficulties you met today. Mr. Jordash wants to raise a matter where he says you should not be bothered by it. Under those circumstances, thanking and awaiting for the further results of your discussions with the Stanisic Defence, the Chamber would like already to thank you for coming. And Madam Usher will escort you out of the courtroom.
And when I addressed you, Mr. Ignjatovic, of course, that also is true for the officials that have accompanied you.
[Serbian government representatives withdrew]
JUDGE ORIE: Mr. Jordash.
MR. JORDASH: It's the issue that was discussed earlier today about Mr. Stanisic's approach to his --
JUDGE ORIE: Disclosure of medical details.
MR. JORDASH: Indeed.
JUDGE ORIE: We dealt with it in private session. If you think you can deal with it in open session, then --
MR. JORDASH: Yes. 15064
JUDGE ORIE: -- that's fine.
MR. JORDASH: Your Honours may know that Mr. Eekhof has been replaced and what transpired was that -- let me go back further than that. The practice that Mr. Stanisic had with Mr. Eekhof was that Mr. Eekhof would bring to him a sheet of paper whereby Mr. Stanisic would sign it to give his consent before seeing any medical report and that practice developed because Mr. Stanisic developed a relationship of trust with Mr. Eekhof. What happened in relation to the new doctor was that the new doctor turned up, offered him a blank piece of paper and yet did not seem to have any knowledge about Mr. Stanisic's health condition, and in fact, admitted that he hadn't read Mr. Stanisic's medical file, and so Mr. Stanisic declined to give his consent under those circumstances.
JUDGE ORIE: Yes. May I take it that this matter that, of course, building a -- building a situation of confidence, of course, may take awhile. At the same time, but that's another matter, Mr. Jordash, this practice with Dr. Eekhof has been developed also under a bit of unfortunate circumstances, that is, that the reporting medical officer was not entirely kept out of treatment, whereas the Chamber very much has insisted in the past that the two functions for -- I think for good reasons should not be mixed up.
Now, since they were mixed up to a tiny little extent, the whole practice of giving written consent has developed as well because reporting is, of course, not subject to patient/doctor relationship. At the same time, I am aware that reporting sometimes requires to look into medical reports which originate from a situation where patient/doctor 15065 privilege or confidentiality does exist.
Therefore, by accepting your explanation at this moment, it does not necessarily mean that the Chamber is -- takes the position that such written consent for a reporting medical officer always is necessarily required. I leave that open for the time being.
MR. JORDASH: I'm not sure that I -- I don't know anything about whether Dr. Eekhof's activities overlapped with treating. That's news to me, Your Honour.
JUDGE ORIE: That was exceptional and in the beginning, but I think it -- at least it was reported to us that it was not always for the full 100 per cent separated. I leave it to that at this moment. The only thing I wanted to emphasise is what I understand caused the content of the report by Dr. De Lorin [phoen] that -- that explanation and that situation, whether the Chamber accepts written consents under those circumstances as an ultimate necessity is not -- is not yet accepted as such by the Chamber. I'm perhaps not very clear on that, but -- you understand what I mean? You explain what happened --
MR. JORDASH: Yes.
JUDGE ORIE: -- and by expressing the hope that matters will develop in such a way that the Chamber is again fully informed about the relevant medical information. That expression of hope does not mean that the Chamber hereby also agrees with you something that could be understood as being implicit in the necessity of that signature for receiving information.
MR. JORDASH: If I gave the impression that Mr. Stanisic didn't 15066 want the Chamber to know about his health, then that was an erroneous impression. He is absolutely clear that he does want the Chambers to be kept aware of his health. So I don't think the issue is going to arise at the moment.
JUDGE ORIE: Let's be practical, I don't think that I misunderstood, but I was talking a bit more of an abstract level rather than on the concrete level. That is what is required as consent approximate in written form if a reporting medical officer prepares a report. That was what I was talking about.
MR. JORDASH: Yes.
JUDGE ORIE: And I am quite confident that matters will be resolved and that we'll have a follow-up practice which is both satisfactory for Mr. Stanisic and for the Chamber.
MR. JORDASH: Thank you.
JUDGE ORIE: Any other matter? Mr. Groome.
MR. GROOME: Your Honour, just the Prosecution is wondering what the schedule will be for the remainder of the week, whether there's any information about the next witness.
JUDGE ORIE: Any information. The latest information we received is that the Stanisic Defence did not receive any information as to the presence of the next witness. Not to say that we have a few experts present, perhaps you could try to update your -- not in court anymore.
MR. JORDASH: We have no news unfortunately.
JUDGE ORIE: No news. That's it. 15067
MR. JORDASH: And I forgot, perhaps I should have asked the Serbian government officials while they were here, but unfortunately I didn't.
JUDGE ORIE: I don't know whether they have left the building already, but you could.
MR. JORDASH: We'll try.
JUDGE ORIE: Okay. Any other matter to be raised? If not, then we will adjourn and we resume for a housekeeping session on Thursday, let me find the date, Thursday the 24th of November, quarter past 2.00 in Courtroom II, Madam Registrar, if I do not make any mistake. I apparently did not.
We stand adjourned.
--- Whereupon the hearing adjourned at 6.03 p.m., to be reconvened on Thursday, the 24th day of
November, 2011 at 2.15 p.m.