121102ED

Page 841

1 Friday, 2 November 2012

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.00 a.m.

5 JUDGE DELVOIE: Good morning to everyone in and around the

6 courtroom. Mr. Registrar, would you please call the case.

7 THE REGISTRAR: Good morning, Your Honours. This is case number

8 IT-04-75-T, the Prosecutor versus Goran Hadzic. Thank you.

9 JUDGE DELVOIE: Thank you. May we have the appearances, please,

10 starting with the Prosecutor.

11 MR. STRINGER: Good morning, Mr. President, Your Honours.

12 Douglas Stringer and Matthew Olmsted appearing on behalf of Prosecution

13 with our Case Manager, Thomas Laugel.

14 JUDGE DELVOIE: Thank you. For the Defence, please.

15 MR. ZIVANOVIC: Good morning, Your Honours. For Defence of

16 Goran Hadzic, Zoran Zivanovic and Christopher Gosnell. Thank you.

17 JUDGE DELVOIE: Thank you.

18 Mr. Prosecutor, I was told that you had a matter to raise.

19 MR. STRINGER: Yes, Mr. President. Thank you.

20 JUDGE DELVOIE: But I thought you asked for private session, is

21 that it? No? Just open.

22 MR. STRINGER: I think open. It may be that at some point we

23 need to move into private, but --

24 JUDGE DELVOIE: Okay. Go ahead. Thank you.

25 MR. STRINGER: Thank you, Your Honour. I would, with the

Page 842

1 Trial Chamber's permission, just like to take a few minutes to address an

2 order that the Chamber issued yesterday which we received yesterday. The

3 Chamber's order on requests for protective measures. It's a public order

4 and I'll speak about it publicly, although there is an accompanying order

5 that relates to one witness that is confidential and so it may be

6 necessary to move into private session for that.

7 Mr. President, we read the order, obviously, yesterday, and it's

8 an order that relates to two protective measures submissions that were

9 recently made by the Office of the Prosecutor, and the Chamber in its

10 order here observed that it had felt that the Prosecution had disregarded

11 the express directions of the Pre-Trial Judge in relation to our

12 consulting with witnesses and informing the Trial Chamber and requesting

13 protective measures by the time of our 19th of June submissions. And I

14 wanted to briefly address that, because obviously, Your Honours, we're

15 very troubled when we read that the Trial Chamber feels that way, and I

16 wanted to inform the Chamber, if I may, of what's happened here with

17 these two witnesses. I think it's important the Trial Chamber understand

18 at least our own view that we did not, absolutely did not, disregard the

19 Chamber's direction on this point.

20 The two witnesses at issue here are - I'll refer to the

21 pseudonyms - GH-107 and GH-099. GH-099 is actually here in The Hague

22 now. She would be the next witness to testify.

23 With respect to 107, she has never been a witness in this

24 Tribunal before. She had a pseudonym from the Milosevic case a very long

25 time ago, but she actually never testified or gave evidence in that

Page 843

1 trial. Mr. President, the Prosecution did contact that witness in

2 advance of the June filing. She was contacted in December of 2011,

3 actually, and at that time, she indicated to our investigator that she

4 did not require any protective measures, not even a pseudonym. And

5 because of that -- and that was reported to the Chamber then in our

6 June 19th submission.

7 This witness was then among a group of witnesses for whom the

8 Chamber then subsequently in an order on the 26th of July, the Chamber

9 directed the Victims and Witness Section to contact a smaller number of

10 witnesses who'd indicated that prior protective measures could be

11 rescinded, and this was -- this witness was among those, and when she was

12 contacted by the Victim and Witness Section, she actually indicated that

13 she did not wish to have her pseudonym rescinded. That information was

14 reported to the Trial Chamber, and so the pseudonym was retained, and it

15 was left at that until just in September and again October this year,

16 last month, when our office contacted the witness about getting passport

17 information and -- for travel logistics. That's when we were informed

18 that the witness was -- now had security concerns and was requesting the

19 additional level of protection that was indicated in the motion then

20 that -- that we filed.

21 And -- so I just wanted to emphasise here, Your Honour, that the

22 19th of June submission did reflect the current state of affairs with

23 respect to this witness, and we had, in fact, contacted this witness. We

24 certainly didn't disregard the Chamber's admonition on that.

25 I think, if I may say, having read the Chamber's order yesterday,

Page 844

1 I think some of the -- if there is some fault in this, I think that the

2 Prosecution could have been clearer in the submissions it's just filed

3 with these two witnesses, because what we did say was that we were

4 seeking these protective measures now because we had wished to consult

5 with the witnesses, and that's correct, but it didn't indicate that in

6 fact we wished to consult with -- with 107 again because of the fact that

7 she was apparently changing the views expressed initially to the

8 investigator and then subsequently when Victim/Witness Section contacted

9 her, and we probably should have been more clear about that. And I think

10 we erroneously gave the impression that we simply had not contacted these

11 witnesses until, you know, we were able to get around to it, and

12 that's -- that certainly was not the case.

13 The situation with Witness GH-099 is different. As of June 19th,

14 Mr. President, we had not contacted this witness at all. Despite all the

15 many years that have gone by since the events in this case happened,

16 there are still witnesses who don't want to talk to us and who have

17 difficulty with the decision whether they will speak to us or testify,

18 and this witness was one with whom we, despite repeated efforts, were

19 unable to make contact with prior to June 19th and even in -- in the

20 period after.

21 We finally were able to get in contact with her and persuade her

22 to speak to us in September of this year, and we immediately put together

23 a mission. Our investigator Ms. Pradhan, whom the Chamber has seen as

24 the declarant on a lot of our declarations, she went along with one of

25 our attorneys, Rachel Friedman. They went and met with this witness.

Page 845

1 This witness has never -- 099 also has never testified here in any

2 proceedings in any capacity. They went and met with her. They spoke to

3 her and the witness agreed to testify and said she wanted the protective

4 measures that are reflected in the motion that the -- that was then filed

5 right after they returned from the mission.

6 Again, I think our submission on this indicates that it could be

7 read as saying, well, we didn't get around to consulting with this

8 witness for whatever reason, but in fact in this situation it's because

9 we simply weren't able to have contact with her until very late. And so

10 I think for us an important point is -- in this, Your Honour, is just to

11 emphasise that the Prosecution by no means disregarded the Chamber's

12 order.

13 Having said that, the additional witnesses who are referred to

14 then in the Chamber's order of yesterday, I think there are eight or

15 nine, those are well in hand. We will file an update or a confirmation

16 about the protective measures that they are -- that they are seeking to

17 the extent that they are seeking anything more than -- than pseudonym,

18 but those are all well in hand, and we don't expect to have any

19 difficulties there.

20 Some of this, if I may say, is human nature. As -- as the time

21 gets closer, people start to think more about what it means to actually

22 come and give evidence, and so I think we can never exclude the

23 possibility that we may be making an application for protective measures

24 closer in time, although I understand that the Chamber has every reason

25 to want to get those matters resolved at the earliest possible time. I

Page 846

1 think in some situations it's unavoidable when the witnesses change their

2 mind as the time approaches.

3 If I could make one last submission, Your Honour, and perhaps on

4 this I should go into private session.

5 JUDGE DELVOIE: Can we go into private session, please.

6 [Private session]

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 847

11 Pages 847-849 redacted. Private session.

Page 850

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 [Open session]

10 THE REGISTRAR: We're back in open session, Your Honours.

11 JUDGE DELVOIE: Thank you. The witness may be brought in. So we

12 first have to go into closed session before bringing the witness in.

13 Sorry about that.

14 [Closed session]