Tribunal Criminal Tribunal for the Former Yugoslavia

Page 7884

 1                           Wednesday, 13 October 2010

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 2.20 p.m.

 5             JUDGE ORIE:  Madam Registrar, could you please call the case.

 6             THE REGISTRAR:  Good afternoon, Your Honours.  Good afternoon

 7     everyone in and around the courtroom.  This is case number IT-03-69-T.

 8     The Prosecutor versus Jovica Stanisic and Franko Simatovic.

 9             JUDGE ORIE:  Thank you, Madam Registrar.  Before we will hear

10     further evidence, there are a few procedural matters which I'd like to

11     raise.  We first move into private session.

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23                           [Open session]

24             THE REGISTRAR:  We are in open session, Your Honours.

25             JUDGE ORIE:  Thank you, Madam Registrar.

Page 7886

 1             On the 8th of October, you, Mr. Jordash, have sent an e-mail to

 2     Ms. Malmstrom of Chamber staff in relation to the admission into evidence

 3     of payment records obtained through request for assistance 1639, and in

 4     relation to any objections to the admission of the Donia report.  You

 5     wrote to Ms. Malmstrom that you had considered the matter in light of the

 6     admissibility threshold established by previous Trial Chamber decisions

 7     and consequently have decided not to pursue any objections and upon your

 8     request, the Chamber then informed you that it was not needed to file a

 9     formal response because we put it on the record by other means which has

10     hereby been done.

11             Then I'm now looking at the Prosecution.  In relation to the

12     admission of payment records, is there any confidentiality involved,

13     Mr. Groome?  I'm talking about P444 up to and including P468, and

14     P1484-1514, which are three additional lists, any need to keep them?

15             MR. GROOME:  Your Honour, given the potential importance, can I

16     ask that I report to the Chamber after the first break and I will verify

17     whether there is a need or not?

18             JUDGE ORIE:  Yes.  Then the Chamber hereby decides that P444 up

19     to and including P468 are admitted into evidence and that P1484 up to and

20     including P1514 are also admitted into evidence and later today the

21     Chamber will decide whether these will be public exhibits or whether they

22     will be confidential exhibits.

23             Then since there are no objections to admission of the Donia

24     report, both parties have now expressed -- both Defence teams have now

25     expressed that they do no longer object, the Chamber hereby admits into

Page 7887

 1     evidence the Donia report, which is P1483.

 2             Then we now turn into closed session in order to hear the

 3     evidence of the next witness.

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 4                           [Open session]

 5             THE REGISTRAR:  We are in open session, Your Honours.

 6             JUDGE ORIE:  Thank you, Madam Registrar.

 7             I would like to deliver the Chamber's decision on the Prosecution

 8     motion for video-conference link for the testimony of Witness JF-052.  On

 9     the 20th of September, 2010, the Prosecution requested leave to call

10     Witness JF-052 via video-conference link.  It's submitted that the

11     witness's status as a refugee in Bosnia-Herzegovina currently makes it

12     impossible for him to obtain travel documents.  While Bosnian law

13     entitles refugees to request passports, Bosnian authorities have not

14     issued such passport to date.  And the implementation of this law is not

15     expected any time soon.  The Prosecution received this information from

16     the Bosnian ministry of security, as well as a non-governmental

17     organisation providing legal assistance to asylum seekers through the

18     Victims and Witness Section in Sarajevo.

19             The Prosecution further submitted that Witness JF-052 offers

20     unique and important evidence to the trial, and that the use of

21     video-conference links does not prejudice the rights of the accused.

22             The Stanisic Defence responded on the 24th of September, 2010,

23     opposing the motion.  It submitted that the Prosecution has made no

24     meaningful effort to obtain the necessary travel documents on behalf of

25     the witness, and argued that not even an application for a passport seems

Page 7933

 1     to have been submitted to the authorities.

 2             It further argued that the relevance of the witness's testimony

 3     to the indictment is highly questionable as the events his testimony

 4     concerns are not enumerated in the indictment, and relate to a

 5     time-period with little connection to the enumerated events in 1991, 1992

 6     or 1995.

 7             The Simatovic Defence did not respond to the motion.

 8             According to Rule 81 bis of the Tribunal's Rules of Procedure and

 9     Evidence, a Chamber may order that proceedings be conducted by way of

10     video-conference link if this is consistent with the interests of

11     justice.  The jurisprudence of this Tribunal has identified three

12     criteria guiding the Chamber in acting pursuant to this rule.  Those

13     criteria are:  The witness must be unable or have good reasons to be

14     unwilling to come to the seat of the Tribunal; the witness's testimony

15     must be sufficiently important to make it unfair to the requesting party

16     to proceed without it; and the accused must not be prejudiced in the

17     exercise of their rights to confront the witness.

18             However, after considering all relevant factors in a particular

19     case, the ultimate determination to be made when considering a request

20     for video-conference link testimony is whether it would be consistent

21     with the interests of justice.

22             Witness JF-052's evidence concerns the presence and actions of

23     certain individuals in Bajina Basta in 1993 and 1994.  These individuals

24     included members of VJ units, the Drina Wolves, police officers from

25     Serbia, as well as Franko Simatovic.  While his evidence concerns crimes

Page 7934

 1     which may not be alleged in the indictment, the Chamber considers his

 2     expected testimony about the acts and conduct of Mr. Simatovic

 3     sufficiently important to make it unfair to the Prosecution to proceed

 4     without it.

 5             Furthermore, the Chamber finds that the accused would not be

 6     materially prejudiced in the exercise of their rights to confront the

 7     witness if video-conference link were granted.

 8             In relation to whether the witness is unable or has good reasons

 9     to be unwilling to come to the seat of the Tribunal, the Chamber notes

10     that the witness is willing to come to The Hague.  As to his ability to

11     come, the Chamber accepts the representations made by the Prosecution.

12     While the Chamber would, at a minimum, have expected requests to obtain

13     the necessary travel document in such a case, it is cognizant that to

14     require such requests at this stage may not lead to any or at least not a

15     timely issuance of such documents.

16             Accordingly, the Chamber considers that to require the applicant

17     to request the travel document at this stage would not be conducive to

18     the expeditious completion of the Prosecution's case.  At the same time,

19     the Chamber expresses its concerns with the administrative system of

20     Bosnia-Herzegovina which may not be functioning as it should be, thereby

21     having a some negative influence on the proceedings of this Chamber.

22             Accordingly, the Chamber invites the parties and the Registry to

23     find ways in consultation with the authorities in Bosnia-Herzegovina to

24     avoid similar such occurrences in the future.  Based on the foregoing,

25     the Chamber is satisfied that it is consistent with the interests of

Page 7935

 1     justice to hear Witness JF-052's testimony via video-conference link and

 2     grants the motion.  And this concludes the Chamber's decision on this

 3     issue.

 4             Mr. Groome, as may be clear, we would have expected a request and

 5     this is not part of the decision, whereas the decision says that it's in

 6     the interests of justice to hear this evidence through video-conference

 7     link, justice might even have been better served if more efforts would

 8     have been made to even hear this testimony viva voce.  I'm not seeking

 9     any further comment on it, but it's just an encouragement to -- if -- so

10     on both sides, both to -- as is expressed in the decision to seek

11     co-operation with the Bosnian authorities, but even if that has not

12     been -- has not yet resulted in a final solution, that it would certainly

13     be preferable to see whether, although perhaps it bad perspectives, to

14     have done everything possible to see whether we could not have received

15     this evidence viva voce.

16             Then we'll take a break now, break of half an hour.  We resume at

17     20 minutes to 6.00, but I already informed the public that we'll resume

18     in closed session and in order not to lose any time, have the curtains

19     already down when we resume at 20 minutes to 6.00.

20                           --- Recess taken at 5.12 p.m.

21                           [The witness takes the stand]

22                           --- On resuming at 5.45 p.m.

23                           [Closed session]

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13                           [Open session]

14             THE REGISTRAR:  We are in open session, Your Honours.

15             JUDGE ORIE:  Thank you, Madam Registrar.

16             How many additional days you would need, Mr. Jordash?  You asked

17     for a couple of days in relation to D122 and D123?  My suggestion was

18     Friday, the 29th of October.  You asked for some additional days.  How

19     many would you need?

20             MR. JORDASH:  Could we have until the Wednesday after, please.

21             JUDGE ORIE:  Which would be Wednesday the 3rd of November, would

22     that do?

23             MR. JORDASH:  Yes, thank you.

24             JUDGE ORIE:  I've not heard from the other parties, therefore

25     simultaneous -- the dead-line for simultaneous submissions by the parties

Page 7961

 1     is set at Wednesday the 3rd of November, close of business.

 2             If there's nothing else, we'll adjourn for the day.  I already

 3     informed the public that we'll continue tomorrow in closed session.  We

 4     adjourn until tomorrow, the 14th of October, quarter past 2.00 in the

 5     afternoon in this same Courtroom I.

 6                           --- Whereupon the hearing adjourned at 7.00 p.m.

 7                           to be reconvened on Thursday, the 14th day of

 8                           October, 2010, at 2.15 p.m.

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