1 Monday, 14 September 2009
2 [Open session]
3 [The Accused Simatovic entered court]
4 [The Accused Stanisic not present]
5 --- Upon commencing at 2.18 p.m.
6 JUDGE ORIE: Good afternoon to everyone.
7 [French on English channel]
8 JUDGE ORIE: I do receive a language I like very much, but on a
9 channel -- channel 4, I received French.
10 Madam Registrar, would you please call the case.
11 THE REGISTRAR: Good afternoon, Your Honours. This is case
12 IT-03-69-T. The Prosecutor versus Jovica Stanisic and Franko Simatovic.
13 JUDGE ORIE: Thank you, Madam Registrar.
14 [Trial Chamber confers]
15 JUDGE ORIE: I see we have a videolink with the undue at this
17 Dr. Eekhof, can you see me? Can you hear me?
18 DR. EEKHOF: Yes, I can see you; I can hear you.
19 JUDGE ORIE: No, I don't see and hear you. Yes. Yes, I would
20 like to ask you again whether you can see me, whether you can hear me.
21 DR. EEKHOF: I can see and I can hear you.
22 JUDGE ORIE: Thank you. We also now can hear you, if we are
23 plugged in on the right socket. Before we start, could the
24 Simatovic Defence -- I would say the new Simatovic Defence introduce
1 MR. BAKRAC: [Interpretation] Good afternoon, Your Honours.
2 Good afternoon to the colleagues from the OTP. I'm attorney at
3 law, Bakrac, and I am the newly appointed Defence counsel for
4 Mr. Simatovic. And Ms. Ingrid Morgan is today with me in the courtroom.
5 JUDGE ORIE: Thank you. Welcome in this courtroom, Mr. Bakrac.
6 We'll come to the newly appointed Simatovic Defence in a minute.
7 I see that the Stanisic Defence is present, and the Prosecution is
9 I'd first like to already ask right from the beginning whether
10 there are any questions for Dr. Eekhof either from Prosecution side.
11 MR. GROOME: Not from the Prosecution.
12 JUDGE ORIE: Mr. Knoops, any question for Dr. Eekhof?
13 MR. KNOOPS: No questions, Your Honour, for Dr. Eekhof.
14 Thank you.
15 JUDGE ORIE: I started with this, Dr. Eekhof, because I didn't
16 want to keep you busy for any minute longer than necessary. Just for
17 your information the Chamber always tries once the documents are received
18 to inquire with the parties whether they have any questions for you.
19 Now, sometimes it is not easy to communicate with the parties, and that
20 can result now and then, unfortunately, in you being present, although no
21 questions for -- to be put to you at this moment. So therefore, as far
22 as I'm concerned, you are excused.
23 We've received - and I'll put that on the record - we've received
24 your report from this morning. We have received the last weekly report.
25 We have received the absence from court due to illness form, and we have
1 received the short form undue medical service questions which were signed
2 by you as well. We've received them. We also received the
3 Jovica Stanisic non-attendance in court form. There are no questions for
4 you, we have received all the written documents. Thank you very much for
5 making yourself available, and we'll try to avoid that you have to be in
6 the videolink if there are no questions for you.
7 DR. EEKHOF: Thank you very much, but it's not a problem.
8 JUDGE ORIE: Thank you. Then you are excused. Any party would
9 like to make any observations as far as continuing the proceedings in
10 what appears to be the absence of Mr. Stanisic?
11 MR. Knoops?
12 MR. KNOOPS: No comment, Your Honour.
13 JUDGE ORIE: Mr. Knoops, I take it that you have -- we have
14 received the report of the reporting psychiatrist Dr. De Man, you've
15 received that?
16 MR. KNOOPS: That is correct, Your Honour. Thank you.
17 JUDGE ORIE: Thank you. I ask you this because you had expressed
18 specific wishes in relation to the reporting by the psychiatrist.
19 Any other matter in relation to Mr. Stanisic's health to be
20 raised at this moment? If not, we'll proceed in the absence of
21 Mr. Stanisic.
22 The Chamber received a decision by the Deputy Registrar, dated
23 the 11th of September of this year, in which it is decided that
24 Mr. Bakrac is assigned as counsel to the accused Simatovic, effective
25 from the 11th of September. The withdrawal of the assignment of
1 Mr. Domazet and assignment of Mr. Petrovic as co-counsel to Mr. Bakrac,
2 effective also the 11th of September, 2009. And finally in this
3 decision, Mr. Domazet is directed to hand over to Mr. Bakrac any case
4 related materials he received or produced during his assignment in
5 accordance with his duties under Article 9(d) of the code of conduct, and
6 to cooperate with the newly constituted Defence team for the period of
7 his assignment as legal consultant.
8 Any matters to be raised in relation to this decision by the
9 Registry? No questions in relation to that.
10 Then, I would like to -- before we move on to two motions that
11 have been recently filed, the Chamber would like to give its guidance on
12 the issue of exhibit stamps which was raised during one of the -- the
13 testimony of one of the witnesses. It's, therefore, now the Chamber's
14 instructions on the issue of exhibit stamps will be read by me. During
15 the hearing of the 27th of August 2009, the issue of the presence of
16 trace markings from other cases on documents sought for admission in the
17 present case arose. The Prosecution suggested that ordinary documents
18 tendered in this case should be differentiated from documents which are
19 sought for admission as part of a Rule 92 ter package. The Chamber
20 informed the parties that it would further consider this matter and
21 having done so, the Chamber's position is as follows: For documents
22 which are tendered as written evidence from another case in application
23 of rules 92 bis, 92 ter, or 92 quater, the Chamber agrees that it would
24 be useful for these documents to bear the trace markings received in
25 those other cases, if there are any.
1 In such instance, the party tendering the documents would not
2 have to present in addition a clean copy of the document. For all other
3 documents, however, the Chamber wishes to avoid unnecessary markings on
4 the documents sought for admission which originate from the documents
5 processing as evidence in other cases. In such instance, the party
6 tendering the document would have to present a copy of the document
7 without the trace markings that may have been placed in other trial
9 This concludes the Chamber's instruction. Perhaps I could add
10 that of course even if we find no traces of the way in which these
11 documents were processed in other cases as evidence, of course we find
12 often additional markings such as stamps on -- in which the authenticity
13 of the document is confirmed or we have ERN numbers, and that's not what
14 this guidance is about. It's just about exhibit numbers in other cases.
15 So admission into evidence, these kind of markings that come from other
16 cases, again to be accepted if the document is tendered specifically as a
17 document which was used in the other case and otherwise not to be found
18 on it.
19 Any questions in relation to this? No questions. Then the
20 Chamber has received recently, not to say very recently, two motions by
21 the Simatovic Defence of the 14th of December. The first Defence motion
22 requesting adjournment of trial proceedings; and the other one,
23 Defence motion requesting provisional release of Mr. Simatovic.
24 The Prosecution, as usually, will have two weeks to respond to
25 these motions. There will be no hearings until a decision on these
1 motions has been delivered.
2 Mr. Knoops, is it the intent of the Stanisic Defence to respond
3 to these motions as well, or would you still consider your position?
4 MR. KNOOPS: Thank you, Your Honour, for asking me this question.
5 The position of the Stanisic Defence is that we will leave it into the
6 hands of the Court with respect to the motion for adjournment of
7 proceedings on the request of Mr. Simatovic. With respect to the
8 provisional release, we think that in terms of judicial economy, it's
9 wise to announce the Chamber that also considering these developments,
10 that the Stanisic Defence will file in due course a similar motion for
11 provisional release. Maybe that could be taken into account with respect
12 to the responses of the Prosecution and the Chamber's decision, and then
13 hopefully we are able to file that motion in due course. We anticipate
14 to file this motion maybe this week. So that's the -- Prosecution could
15 respond maybe to both applications at the same time, and the Court can
16 render the decision on the both requests for provisional release at that
18 JUDGE ORIE: Simultaneously, yes.
19 Mr. Groome.
20 MR. GROOME: Your Honour, I just received Mr. Simatovic's
21 provisional release application before coming to Court; I haven't had a
22 chance to study it. But it seems that both of them would be conditioned
23 upon the Chamber's decision with respect to an adjournment. So if with
24 the Court's leave, the Prosecution would respond to those, conditionally,
25 that should the Chamber decide that an adjournment is appropriate here,
1 that that would be our position.
2 JUDGE ORIE: Some adjournment already of course is decided
3 because we will not hear the case until we have decided on these motions.
4 So that is already an inherent adjournment. But you'd say the
5 adjournment as requested by the Simatovic Defence.
6 MR. GROOME: Yes, Your Honour.
7 And then, Your Honour, I had come prepared today - I welcomed the
8 Chamber's opportunity to respond in writing - but I had come today
9 prepared to make some submissions to the Court with respect to the motion
10 for adjournment, so just to correct some factual matters in the motion if
11 the Chamber is assisted by that. And also had some observations to make,
12 submissions to the Chamber to make, should there be an adjournment, how
13 -- some suggestions for how we might make productive time or use of that
14 time so that when we do resume active hearings, that we can expedite
15 matters before the Chamber. I can put that in a written form if the
16 Chamber would prefer in the response to the motion for adjournment, or
17 I'm happy to discuss some of those today.
18 JUDGE ORIE: Yes.
19 [Trial Chamber confers]
20 JUDGE ORIE: Mr. Groome, if there are any corrections to be made
21 in relation to factual information contained in the motions, then the
22 Chamber would like to hear it now, which would also result in the
23 Simatovic Defence hearing it and even being to able correct, if there's
24 any need for that, its motion, or to further explain those matters so
25 that we can take them all together when we finally will decide on the
1 motions. Apart from that, so what your position would be that that --
2 the Chamber will be glad to receive that in writing.
3 MR. GROOME: Your Honour, just the two factual corrections are -
4 I think it was paragraph 11 of the application - it stated that the
5 Prosecution exhibit list was of -- had 5.000 exhibits. The actual number
6 of exhibits is 3.548, and I think in the same paragraph, it was stated
7 that the Prosecution intended to call over 100 witnesses. There are
8 100 witnesses, 64 of which would be called for hearings. So there is a
9 substantial number that would not be called live.
10 And it may the Chamber as well, I asked for a calculation of the
11 amount of materials for the first five witnesses. And for the first five
12 witnesses, Your Honour, the number -- the amount of material that we
13 would be dealing with would be 112 exhibits, 7 statements, 11 days of
14 prior testimony, and 6 proofing notes. Thank you, Your Honour.
15 JUDGE ORIE: Yes, and those were the first five witnesses already
16 scheduled, or now being scheduled to accommodate the Defence?
17 MR. GROOME: Your Honour, I think the best way to consider that
18 is kind of a random sample from the witness list. Because until we know
19 an actual date of hearing, it's hard to give those first five. But I
20 think it is reflective -- I think if we were to take any five, this would
21 be indicative of the amount of material for the five witnesses.
22 JUDGE ORIE: Thank you. Well the correction, unless the
23 Simatovic Defence would disagree with the corrections, we'll take the
24 numbers as being corrected, but if, Mr. Bakrac, if you would disagree
25 with the numbers now given by Mr. Groome, then of course we'd like to
1 hear from you.
2 MR. BAKRAC: [Interpretation] No, Your Honour. I'm not in a
3 position at all to disagree simply because I am completely and utterly
4 new to the case, and the information concerned is information I received
5 from members of the team of late Mr. Jovanovic who were unable to give me
6 precise answers to my questions as to what sort of material this was, and
7 the quantities involved.
8 This was an approximation that we put into our motion. I do not
9 doubt the sincerity of my learned friend, Mr. Groome. However, I believe
10 that the correction which said that is it's not 5.000 pieces of evidence
11 but 1.300 and -- or, rather, 3.548. And this is a case which is of the
12 third degree of complexity, and the number of witnesses involved is
13 already argumentation enough to support the points that is Mr. Petrovic
14 and I placed in our motion.
15 The case of such a complexity is prepared --
16 JUDGE ORIE: Mr. Bakrac, I asked you whether you wanted to give
17 further questions to what Mr. Groome said. I do understand that you even
18 feel not to be in a position to comment on that, and you slowly, I think,
19 proceeded in -- well, emphasising what we find already in the motion to
20 adjourn. And of course we'll read that, and we'll first weight what the
21 response of the Prosecution to that will be. Nevertheless to be on a
22 very practical level, if I would want to know how many documents there
23 are on a 65 ter list, I would just look at that list. That would take me
24 approximately three minutes to verify whether the number is correct or
25 not, rather than asking others. I mean, that's all officially filed.
1 You find it in e-court. So, therefore, I would be able to verify the
2 numbers. And, well, if it would not be three minutes, then it would be
3 four, but not anything more. But you have an opportunity to correct him,
4 if what Mr. Groome said was not accurate.
5 Any further matter in relation to these motions?
6 Yes, Mr. Bakrac?
7 MR. BAKRAC: [Interpretation] No, Your Honour. I'm not in a
8 position to contradict Mr. Groome. I would like to recall that
9 unfortunately late Mr. Jovanovic kept all the documentation with him.
10 There is a procedure in place to get hold of the material. I haven't
11 even met with Mr. Domazet to receive the material from him. As you are
12 well aware, I was assigned as counsel on the 11th, on Friday, and this is
13 the first working day. Hence, I'm not in a position to challenge any of
14 the points put forth by Mr. Groome. Nevertheless, I don't think that the
15 points we are trying to make in our motion is affected by this at all
16 since the time necessary to prepare on all the material mentioned here
17 does not change. I don't want to repeat everything that we've stated in
18 our motion. I am at your disposal if the Trial Chamber would want me to
19 clarify any of the points. But I don't want to repeat them all here, I
20 don't think it's necessary.
21 JUDGE ORIE: No, we find them in the writing.
22 There's one matter I would like to briefly raise with you. I'm
23 not asking for a response, but in the motion you, Mr. Bakrac, you are
24 telling the Court that it will be a whole new team in every respect, not
25 only counsel and co-counsel. First of all, I do not know whether this
1 has already been approved by OLAD that others are replaced as well, but
2 replacing all members of the team by others as a reason it to claim
3 further time to prepare is not what the Chamber expects a responsible
4 Defence team to do because work has been done by members of the team and
5 profit, whatever profit can be taken from those who have worked on the
6 case, that we can't just allow a team to throw that away and say, We need
7 more time because we have a new team.
8 Of course, unfortunately Mr. Jovanovic is not able to continue
9 his job due to his, as you said also in the motion, his death, and
10 therefore, under those circumstances, it's of utmost importance to keep
11 everything and to carefully watch that nothing of the results by team
12 members, up to that moment, will be lost. And replacing the whole team -
13 the Chamber is aware of the position of Mr. Domazet who has been assigned
14 to temporarily still assist the team - but to replace other team members
15 might not be in the interests of judicial economy. And, therefore, I'm
16 not going to further comment on it at this moment, but since it is
17 announced that you need so much time also because the whole team will be
18 new, that's not what the Chamber expects a team to do.
19 MR. BAKRAC: [Interpretation] Your Honours, thank you for not
20 requiring me to reply right away, and thank you for allowing me to reply
21 at a later stage after considering this matter. What I would like to
22 state is that there is possibly a misunderstanding. As you can see,
23 Ms. Ingrid Morgan is with me today. It wasn't until today that I
24 received a full list of the team members. I had a meeting with OLAD
25 before coming to this courtroom, and naturally I will do my best to use
1 the services of every single team member who could contribute to speeding
2 up the process.
3 There is no need for me to go into further details right now, but
4 I'm prepared to accept that any member of the team who can be of
5 assistance to speed up the trial remain on the team. I wasn't able to
6 meet and to talk with Mr. Domazet, who is our senior and esteemed
7 colleague and who was co-counsel in this case, and I don't know to what
8 extent he is prepared to continue as legal consultant in this case, given
9 the relationship between him and my client. I'm not aware whether he is
10 prepared or not. I'm certainly willing to take him on, but should that
11 not be of assistance, then it would make more sense to take on board
12 somebody else who would contribute to speeding up the trial.
13 Otherwise, I fully agree with you that all resources that could
14 be used in order to prepare for the case in a faster way needs to be
15 done. And in all those cases where we think that a replacement would be
16 useful, I will, regarding all those instances, submit a motion to you and
17 to the Registrar concerning such situations.
18 JUDGE ORIE: Well, you are invited to further discuss the matter
19 with OLAD, and I just wanted today express the concern of the Chamber
20 where that language was used that the team would be replaced or there
21 would be a wholly new team, that's not what we expected.
22 Then Prosecution is invited to respond to the provisional release
23 motion, if possible, together with the Stanisic provisional release
25 MR. GROOME: Yes, Your Honour. I will do that. And there is one
1 matter that I would like to state and just to say it on the record, that
2 I would request that Mr. Bakrac and Ms. Morgan come back to my office
3 with me. I've arranged to have staff available to ensure that they have
4 -- there are no disclosure issues, that they have access to all the
5 disclosure material. And I'd like to begin that process today, so I just
6 want to put on record that I'm requesting that they do return for a
7 meeting with me, short meeting after this hearing. Thank you.
8 JUDGE ORIE: Yes, well, you are invited for tea, Mr. Bakrac.
9 Any other matter?
10 MR. BAKRAC: [Interpretation] Thank you, Your Honour. Thank you
11 to my learned friend.
12 JUDGE ORIE: Any other matter to be raised at this moment? If
13 not, the Chamber will issue -- once it has decided on the motions, will
14 issue a Scheduling Order which of course will then be in accordance with
15 the decision which will be -- by then, be delivered on the motion to
16 adjourn. Therefore, we stand adjourned at this moment sine die.
17 --- Whereupon the hearing adjourned sine die
18 at 2.50 p.m.