1 Wednesday, 27 August 2008
2 [Open session]
3 [The accused not present]
4 --- Upon commencing at 2.17 p.m.
5 JUDGE ORIE: Good afternoon.
6 Mr. Registrar would you please call the case.
7 THE REGISTRAR: Good afternoon Your Honours; good afternoon to
8 everyone in the courtroom. This is case number IT-06-90-T, The
9 Prosecutor versus Ante Gotovina et al.
10 JUDGE ORIE: Thank you, Mr. Registrar.
11 I establish that the accused are not present in the courtroom.
12 The Chamber was informed since we would deal with housekeeping matters
13 rather than anything else, that the accused expressed their preference
14 not to be present today.
15 Can this be confirmed by each Defence counsel.
16 Mr. Misetic.
17 MR. MISETIC: Yes, Your Honour, that is correct.
18 General Gotovina waives his right to be present for today's hearing.
19 JUDGE ORIE: Mr. Mikulicic.
20 MR. MIKULICIC: As well, Your Honour.
21 MR. KAY: On behalf of Mr. Cermak, he doesn't want to be here
22 today either.
23 JUDGE ORIE: That is now on the record. I did not indicate
24 yesterday that the Chamber would also deliver an oral decision, a
25 decision which was already communicated to the parties that the Chamber
1 grants the videolink motion for Witness 24.
2 May I take it that this is technically not a housekeeping matter
3 but that this will not change the position of the Defence.
4 MR. MISETIC: That's correct Your Honour.
5 JUDGE ORIE: Mr. Mikulicic.
6 MR. MIKULICIC: Yes, Your Honour.
7 JUDGE ORIE: Mr. Kay? Thank you for the confirmation.
8 Then what I have on my agenda is one thing and it is to go
9 through the MFI
10 I would like to go through it first Defence exhibits, then
11 Prosecution Exhibits. I'll do it in the order of the exhibit numbers.
12 And I'll take them sometimes one by one and sometimes I'll take them in
14 I start with D78.
15 Mr. Mikulicic.
16 MR. MIKULICIC: Yes, Your Honour. This is a video which caused
17 some problems but mean time I spoke with Mr. Hedaraly, and we made
18 agreement that the Prosecution will have no objections against tendering
19 this document, so I --
20 JUDGE ORIE: Ms. Gustafson.
21 MS. GUSTAFSON: That's correct there is no objection.
22 JUDGE ORIE: The Chamber admits into evidence D78 video with the
23 first baby born. D141.
24 MR. MIKULICIC: This is an RSK war bulletin which was pending for
25 translation in the mean time that was done so the translation is
2 JUDGE ORIE: D141 is admitted into evidence.
3 MS. GUSTAFSON: Your Honour, sorry to interrupt I just checked
4 e-court right before Court and I didn't see the translation so --
5 JUDGE ORIE: That is it -- then I perhaps I was a bit too hasty.
6 The Chamber was informed by e-mail on the 26th of August that the
7 translation had been uploaded, but due to the fact that we have good
8 systems I could immediately verify that. That's --
9 MS. GUSTAFSON: I apologise, Your Honour, the translation is
10 there. That's my mistake.
11 JUDGE ORIE: Yes, yes. That is the advantage of our electronic
12 systems that it is there. And now, of course, since there has been an
13 issue about it ...
14 Translation is uploaded in the system of this war bulletin of
15 which the first page is handwritten. Therefore, the decision I just
16 gave, that D141 was admitted into evidence stands.
17 For D284, for D397 and D398, the Chamber considers that we cannot
18 move on yet. It is the admission has been postponed until further
19 procedural events have taken place, which they have not taken place yet.
20 Then we come to D399, up to and including D401.
21 Mr. Mikulicic.
22 MR. MIKULICIC: Yes, Your Honour. These are all documents from
23 65 ter list, and we made agreement with Prosecution office they will have
24 no objection, as I was informed.
25 MS. GUSTAFSON: That's correct Your Honour.
1 JUDGE ORIE: Then D399 up to and including D401 are admitted into
3 D427, it was not admitted because there was no full English
4 translation. I do understand that the full English translation of D427
5 has meanwhile been uploaded.
6 MR. MIKULICIC: Not exactly, Your Honour. We have been informed
7 that a full translation has been done, but as we checked it, we found out
8 that only three of 14 pages had been translated; and we are still waiting
9 for another portion of that document.
10 JUDGE ORIE: Ms. Gustafson.
11 MS. GUSTAFSON: It appears that it's still a partial translation
12 in e-court, Your Honour, and we would like to review the entire
14 JUDGE ORIE: Then ...
15 Yes, the original takes 14 pages, whereas the translation there
16 its type-written version is just a bit over one page. So, therefore, it
17 is still an incomplete translation.
18 Therefore, D427 remains, for the time being, on the MFI lists.
19 Then we come to D471, up to and including D485.
20 Mr. Kay.
21 MR. KAY: Yes, Your Honour. These arose during the
22 cross-examination of a protected witness. There was no objection by the
23 Prosecution at the time, and they went in as a collection on a particular
24 issue that has been flagged up in the case, concerning separate police.
25 Again, they're all documents that are known to the parties and there is
1 it no objection from the Prosecution.
2 MS. GUSTAFSON: Correct, Your Honour, no objection.
3 JUDGE ORIE: No objections. Then D471 up to and including D485
4 are admitted into evidence. I add to that, that D475 and D476 are
5 admitted, under seal.
6 We move on to D525.
7 MR. KAY: Your Honour, there was another D in between. I
8 hesitate to jump in on this matter. D494.
9 JUDGE ORIE: Oh, yes, I -- you're right. I'm misreading.
10 D494 is a document of which the B/C/S version at the time needed
11 to be uploaded in e-court by the Cermak Defence and this has been done by
13 MR. KAY: Yes.
14 JUDGE ORIE: And, therefore, we have a B/C/S version as well. I
15 think that there was no objection against the English; so, therefore, I
16 take it that is mainly for procedural technical reasons that we postpone
17 the decision on admission.
18 MR. KAY: Yes, Your Honour.
19 JUDGE ORIE: Yes. Then D494 is admitted into evidence.
20 We now move to D525. Mr. Misetic, you were expected to upload a
21 shorter version of the document; that is various maps of the Maslenica
22 and Obrovac areas. It was, at that time, it was eight to ten pages. We
23 asked you to re-upload it. A shorter version has now been uploaded.
24 MR. MISETIC: That is correct.
25 JUDGE ORIE: Any objections.
1 MS. GUSTAFSON, No, Your Honour.
2 JUDGE ORIE: Then D525 is admitted into evidence.
3 D543 is the next one on the list. There was an issue with the
4 English translation of the document, and the Chamber instructed the
5 parties to explicitly inform the Chamber when a correct translation was
6 uploaded, even with a hard copy to be provided to the Chamber.
7 Mr. Mikulicic.
8 MR. MIKULICIC: Yes, in the mean time, the OTP provided revised
9 translation, and we agreed upon it.
10 JUDGE ORIE: Yes. And the hard copies for the Chamber?
11 MR. MIKULICIC: That I believe it's kind of mistake with them.
12 JUDGE ORIE: Kind of a mistake.
13 MR. MIKULICIC: [Overlapping speakers] ...
14 JUDGE ORIE: If you show to the Chamber and on the assumption
15 that reviewing this material that there would be no need for the parties
16 have agreed to reconsider the admission into evidence, the Chamber
17 decides to --
18 MR. MIKULICIC: We will do it by tomorrow, Your Honour.
19 JUDGE ORIE: The Chamber decides to admit it with this proviso,
20 into evidence D543. It is not a provision admission, Mr. Registrar, but
21 just the parties are aware that there is it a -- although perhaps minimal
22 chance that we would have to reconsider it that the Chamber would still
23 look at the hard copy.
24 Then we move on to the next item on our list, is D563, which is a
25 document heavily redacted, at the request of the Croatian government, and
1 the Prosecution expressed their wish to have a look at the un-redacted
2 copy in order to finally make up its mind as to whether it would object
3 to the admission of this document.
4 Ms. Gustafson.
5 MS. GUSTAFSON: Yes, Your Honour. We were provided with an
6 un-redacted version by the Markac Defence. We subsequently requested the
7 same document from the Croatian authorities. They provided it to us in
8 un-redacted form with no conditions on its use; we propose that the full
9 version which we have sent for translation once it is translated be
10 replaced for this highly redacted version. We reviewed it, and we think
11 the whole document is relative and the whole document should go into
13 JUDGE ORIE: Mr. Mikulicic.
14 MR. MIKULICIC: Yes, I'm happy with this, Your Honour.
15 JUDGE ORIE: Yes. So what the Chamber will do is the Chamber
16 waits until the un-redacted version has been translated. Then in the
17 e-court system the redacted version should be replaced by the un-redacted
18 version, and then once this all has been done, the Chamber will decide on
19 admission and it is already on the record that Mr. Mikulicic has no
20 objections against the -- I take it that you still be the party tendering
21 the document but that have you no problems at this moment anymore with
22 tendering the un-redacted version.
23 MR. MIKULICIC: Yes, Your Honour, but our position will be that
24 this document will be tendered under seal.
25 JUDGE ORIE: Under seal, yes. That is already on the list, the
1 decision then will be that it is standard under seal and the Chamber will
3 We move on to D568.
4 Mr. Misetic.
5 MR. MISETIC: Yes, Your Honour that was a bar table submission
6 requiring a translation correction that has been done, and it has been
7 uploaded into e-court.
8 JUDGE ORIE: Ms. Gustafson, I think the Prosecution has not taken
9 a position as far as objections.
10 MS. GUSTAFSON: No Your Honour. We're still reviewing the chart
11 that Mr. Misetic created and provided. We have attempted to review the
12 chart, the material underlying the chart that Mr. Misetic provided to us.
13 However, the material underlying the chart was still in itself a chart
14 prepared by the Croatian authorities and didn't provide us with
15 sufficient information to check every entry in the chart to determine its
16 relevance to the Moric order, which was the purpose for which the
17 document was tendered. We've requested additional information from the
18 Croatian authorities, but we're still in the procession of that review
19 and still awaiting some material. So we reserve our position for now on
20 that -- on that chart prepared by the Defence.
21 JUDGE ORIE: Mr. Misetic.
22 MR. MISETIC: Your Honour I would say that the chart as long as
23 it accurately it is just a shortened version of a chart prepared
24 officially by the Croatian government and it was done -- the chart was
25 prepared as a means of simplifying a document, which I believe was over a
1 thousand pages long, looking and digging further into it is something I
2 submit more a question of further -- putting on the case of the
3 Prosecution rather than checking to see if our shorten version is
4 consistent with a document that was produced by the Croatian government
5 and therefore I would ask that it be admitted into evidence and if
6 there's something about what the Croatian government did that the
7 Prosecution believes was inconsistent, inaccurate, et cetera that is
8 something that can be done through further submissions by the
10 JUDGE ORIE: And it might even be difficult to deal with it --
11 but let not --
12 Ms. Gustafson.
13 MS. GUSTAFSON: Your Honour, it is it less a matter of
14 verification, more a matter of the relevance of the document. The
15 document was submitted for the purpose of showing that crimes relevant to
16 Moric's 18th August order committed before the 18th of August were
17 investigated or prosecuted after the 18th of August.
18 Our initial review has indicated that some of the entries don't
19 relate to crimes covered by Moric's order, don't relate to the proper
20 time-period, and don't relate to the geographic location; so it goes to
21 the heart of the relevance of this document, this review and we object to
22 its admission at this stage for that reason.
23 JUDGE ORIE: Is the is the whole of the document irrelevant or do
24 you say that there are entries on this compilation which lack relevance
25 because of A, B, or C is that the case.
1 MS. GUSTAFSON: Yes, that's the case, and we would propose once
2 we've been able to complete our review approaching the Defence and
3 attempting to go come to agreement on a list of entries that we agree are
4 relevant to the purpose for which this document was initially submitted.
5 MR. MISETIC: Your Honour, I stand by our submission. I have had
6 a series of communications with Mr. Margetts on this issue. I submitted
7 the last e-mail which I believe clarified whatever was left to clarify,
8 and never received a response and it is, I believe, been over a month
9 since that was done. So I don't have any reason until Ms. Gustafson's
10 submission here today to even believe there was anything in dispute.
11 JUDGE ORIE: Ms. Gustafson.
12 MS. GUSTAFSON: As far as I'm aware Mr. Margetts' position has --
13 with Mr. Misetic's has been the same. I discussed with him --
14 JUDGE ORIE: Has Mr. Margetts returned from holiday, if he had
16 MS. GUSTAFSON: Yes, Your Honour but we have just discussed this.
17 His position is the same. We're waiting for this underlying material; we
18 continue to review the chart.
19 MR. MISETIC: I have the e-mail communication, Your Honour. I
20 think it was in mid-July that I said I still don't understand, and I
21 clarified what I thought was the --
22 JUDGE ORIE: And you didn't receive a response.
23 MR. MISETIC: Yes, so ...
24 MS. GUSTAFSON: That is primarily for the reasons, Your Honour,
25 that we hadn't finished reviewing the material and we proposed -- when
1 that review is finished when we received underlying material.
2 JUDGE ORIE: How much time would you still need to finalize your
4 MS. GUSTAFSON: In part our review is nearly complete but in part
5 it depends on the length of time it takes to receive the underlying
6 material that we need to receive from the Croatian authorities.
7 MR. MISETIC: Your Honour.
8 JUDGE ORIE: That's -- yes, I'm a bit puzzled, Ms. Gustafson, by
9 whether this is a matter of admissibility or whether this is a matter
10 of challenging the content on the basis of compilation being incomplete,
11 inaccurate, whatever it is.
12 MS. GUSTAFSON: Well, Your Honour in contrast to a
13 contemporaneous document this is a document that the Defence has prepared
14 for a specific purpose. Our position is that we should be able to reach
15 agreement with the Defence and come to a common position which would, I
16 think, be of more assistance to the Chamber than -- than a submission by
17 the Defence that the Prosecution disagrees with.
18 MR. MISETIC: I don't -- again, Your Honour, I don't know that
19 there is a disagreement given that they haven't gotten the documents that
20 they're looking for, and I tend to agree with the Trial Chamber that this
21 would be more a matter of argument; and they can submit additional
22 documents if they wish. But I think the essence here is that it was a
23 document prepared by Croatian government; this is it just a shortened
24 version of that document and unless the Prosecution believes that we have
25 somehow inaccurately misrepresented what was in the compilation prepared
1 by Croatian government, I think it is it admissible. The weight can be
2 disputed later through further submissions by additional evidence of the
3 Prosecution if deemed necessary.
4 MS. GUSTAFSON: Your Honour, one of the issues without needing
5 the underlying material is many of the entries related to crimes not
6 covered by Moric's order, which is burning and looting. Many of the
7 entries on the chart when you look at the provisions of the Croatian
8 criminal code that are cited relate to crimes against persons that are
9 not mentioned in Moric's order and our submission is that is just not
11 MR. MISETIC: Your Honour, I disagree with that.
12 JUDGE ORIE: Of course, if we have the whole of the document in
13 which there are relevant entries and irrelevant entries than the question
14 is whether -- this goes to admissibility or whether you would say at a
15 later stage or immediately this document may deal with some of the crimes
16 covered by the order. But that's only 30 per cent. Then we'll know it,
17 and of course it would certainly assist the Chamber if the parties could
18 agree on what is and what is not -- yes, Mr. Misetic.
19 MR. MISETIC: I think that the problem is that we're going to
20 have a disagreement about what the Croatian law and what is covered by
21 particular provisions of the criminal code; and therefore, since I
22 anticipate now given Ms. Gustafson's representations that we don't agree
23 on what the crime against person provision means and how it was applied
24 at the time it may be that you know, there are additional witnesses
25 coming from the Prosecution who will be able to address that issue if it
1 is in dispute; but I would submit to you, Your Honours, that I have
2 reviewed this; Mr. Margetts raised that issue with me in e-mail
3 communication; I responded and it is our position that -- all of the
4 articles that we cited from the Croatian criminal code apply here. If it
5 is in can dispute then it is simply, Your Honour, a matter for further
6 submissions of the Prosecution in rebuttal of what we produced, but that
7 doesn't go to admissibility.
8 [Trial Chamber confers]
9 JUDGE ORIE: The parties get one more week to quarrel with each
10 other. Then after that week, the parties are invited to report to the
11 Chamber whether this has led to any conclusions -- no, to any joint
12 conclusions. If not, both parties will make brief written submissions
13 within one week after that date. I'm thinking in terms of one or two
14 pages, just outlining the really vital issues in relation to
15 admissibility, and then the Chamber will decide.
16 You're not ordered to quarrel for one week. I mean, if you can
17 do with only two days of quarrelling then of course you're free to do so.
18 But the Chamber would like to receive information from the parties in one
19 week and if that is not -- if that does not resolve the matter, then we
20 will receive short, written submissions.
21 Mr. Misetic, may I take it that you do not take your holidays and
22 Mr. Margetts is not taking any second holidays.
23 MR. MISETIC: Thank you, Your Honour.
24 JUDGE ORIE: All right. Let me see where we're -- yes, I think
25 we're now at D573.
1 D573 is the first in, I would say, a list sequentially numbered
2 which ends at D615. These were documents tender across the bar table by
3 the Cermak Defence, and we do understand the Prosecution does not object
4 the admission. The Chamber of course wants to review them as well but of
5 course also seriously considers that there are no objections; and unless
6 I hear otherwise at this moment, the Chamber is inclined to admit D573 up
7 to and including D615 into evidence.
8 MR. KAY: I'm much obliged Your Honour. Your Honour, will
9 remember they arose during the cross-examination of a protected witness.
10 JUDGE ORIE: Witness 86.
11 MR. KAY: And there was explanation at the time, and they formed
12 part of a continuum --
13 JUDGE ORIE: Yes.
14 MR. KAY: -- of documentation in the trial.
15 JUDGE ORIE: Yes.
16 MR. KAY: Thank you.
17 JUDGE ORIE: Then D573 up to and including D615 consequentially
18 numbered are admitted into evidence.
19 We now come to a similar series of documents also tendered across
20 the bar table by the Cermak Defence. They were tendered in relation to
21 the testimony of Witness Forand, and in -- in this series, which goes
22 from D616 to D657, we have not yet heard from the Prosecution whether
23 there were any objections.
24 Ms. Gustafson.
25 MS. GUSTAFSON: No objection to any of the documents tendered.
1 JUDGE ORIE: Against any of the documents.
2 MR. KAY: Again, Your Honour, and it is the same observation I
3 think the Trial Chamber was familiar with the issues that were being put
4 forward by the Defence in cross-examination and these went to distinct
5 issues that have been raised in the cases.
6 JUDGE ORIE: Thank you, Mr. Kay. The documents tendered by the
7 Cermak Defence and assigned numbers D616 up to and including 657 are
8 admitted into evidence.
9 Which brings us to the next series. Mr. Misetic, I think these
10 are yours, D659 up to and including D665.
11 MR. MISETIC: Yes, it is my understanding that these have been
12 uploaded into e-court and -- just checking here.
13 I received --
14 JUDGE ORIE: Examples of MUP taking action against HV soldiers.
15 MR. MISETIC: Correct. And I received an e-mail from
16 Mr. Margetts, I belive, on the 9th of July indicating there was no
18 MS. GUSTAFSON: Correct, Your Honour, no objection.
19 JUDGE ORIE: No objection. Then D659 up to and including D665
20 are admitted into evidence.
21 I come now to my next -- not my next item but my next series
22 which is D666 up to and including D680 with special attention for D68 --
23 no, no special attention for any of them.
24 These were tendered by the Gotovina Defence; are there any
25 objections, Ms. Gustafson, against these.
1 MS. GUSTAFSON: No, Your Honour.
2 JUDGE ORIE: No objections. Then nothing opposes admission,
3 Mr. Misetic, would you like to add anything or ...
4 MR. MISETIC: No, that's fine.
5 JUDGE ORIE: D666 up to and including D680 all tendered in
6 relation to the testimony of Mr. Galbraith tendered across the bar table
7 are admitted into evidence.
8 I now come to D689, which was a telefaxed e-mail of a legal memo,
9 and I do understand that last-minute activity between the parties has
10 resolved the issue.
11 The issue was that the -- that the telefax e-mail message was
12 badly legible, that now a better legible copy of the same document has
13 been uploaded, and that the second question that is unclarity in review
14 of -- and let me just try to find my own words.
15 That the Chamber had difficulties to understand who sent this
16 message, when, to whom, that the better legible copy clarifies this
17 issue, and I do understand that the parties now agree that the -- at
18 least it is the understanding of the parties that the document originates
19 from the Belgrade Helsinki Committee and was sent to Sasa Milosevic in
21 would then have been faxed by the UN Centre for Human Rights in Zagreb
22 Mr. Martin Markov in Geneva
23 And this was the latest message from half an hour before this afternoon's
24 session started.
25 Therefore, it appears that there are no objections, any further
2 Ms. Gustafson is that we will understood.
3 MS. GUSTAFSON: No objection, Your Honour.
4 JUDGE ORIE: Then D689 is admitted into evidence.
5 D717, the Chamber will further consider the admission of D717 and
6 is not seeking, at this very moment, further submissions of the parties.
7 I now move on to D718. I think, as a matter of fact,
8 Ms. Gustafson, that after the witness had left you informed us that there
9 were no objections against these -- these maps, locational maps but the
10 Chamber has failed to take a decision on admission into evidence.
11 Therefore, under these circumstances, the Chamber now formally decides
12 that D718 is admitted into evidence.
13 P320 was still on our list, but a decision has been delivered
14 yesterday on P320.
15 Then I come to a -- to number P443, which is a statement, which,
16 at this moment, requires no decision by the Chamber. I refer to similar
17 issues we find in relation with D397 and D398. Therefore, we'll leave
18 this for the time being.
19 The next series starts with D459 and ends with D479, although
20 D460 is not --
21 MR. MISETIC: I believe you mean P, Your Honour.
22 JUDGE ORIE: Oh, yes. Yes, yes, I misspoke. Thank you,
23 Mr. Misetic, for correcting me.
24 P460, Mr. Registrar, could you ...
25 [Trial Chamber and registrar confer]
1 Yes. Mr. Registrar informs me that what was uploaded at the time
2 under P460 is -- has been is admitted into evidence. As P457 and that,
3 therefore, P460 is to be vacated, which is done at this moment.
4 Therefore, we are now talking about P459 and P461, up to and
5 including P479. There is -- we are in a situations that they were
6 tendered across the bar table and that we were still waiting, whether
7 there was any Defence objection. I make one observation in relation to
8 P462 which was the transcript of a meeting as it is described on the list
9 dated the 9th of August, 1995. There seems to be some confusion whether
10 this should not be the 11th of August.
11 Could, Ms. Gustafson, it is a P document could you inform the
13 MS. GUSTAFSON: Yes, Your Honour. There was some confusion when
14 there exhibit was tendered. We subsequently discovered that it was a
15 transcript from the 11th of August. That I believe's the common position
16 of the Defence. We've just now provided them with a complete translation
17 or a more complete translation of that 11th of August transcript and I
18 believe they may need some time to review that. But my understanding is
19 that there's no controversy on what the document is.
20 JUDGE ORIE: Mr. Misetic.
21 MR. MISETIC: Your Honour, again, I need -- she is --
22 Ms. Gustafson is correct I need an opportunity to review it, it came at
23 2.03 to my e-mail, so if I could just have a few days to review it.
24 JUDGE ORIE: I'm waiting for the moment that e-mail starts coming
25 in after the hearing has started.
1 Same positions for the other Defence teams, I take it. Yes,
2 Mr. Mikulicic you're nodding yes; Mr. Kay the same.
3 Apart from this specific problem with P462 are there any
4 objections against P459, P461, and P463, up to and including P479?
5 MR. MISETIC: Your Honour, P4 -- now I'm confused.
6 JUDGE ORIE: The issue of the date was in relation to P462. I'm
7 now, I dealing with P459, which is the first in the series, presidential
8 transcript dated the 8th of January.
9 MR. MISETIC: No, Your Honour, there is no objection.
10 JUDGE ORIE: And the second one 460 is vacated. 461 is among the
11 documents that we can decide as far as admission is concerned. P462 is
12 the one for which you need more time, and then we have P463, up to and
13 including 479, where the Chamber would like to know whether there's any
15 MR. MISETIC: There's no objection.
16 JUDGE ORIE: Same position [Overlapping speakers] ...
17 MR. MIKULICIC: No objection, Your Honour.
18 JUDGE ORIE: And I see you Mr. Kay, nodding in a similar way
19 [Overlapping speakers] ...
20 Which means that the Chamber now admits into evidence P459, P461,
21 P463, up to and including P479.
22 Which brings us to P480, which is an evacuation order, or a
23 purported evacuation order. P480 was discussed during the testimony not
24 only of Mr. Galbraith but also during the testimony of Maria Vecerina and
25 the Gotovina Defence opposes the admission of the document, opposed with
1 Witness Vecerina since she was unable to identify it.
2 I do understand that the Gotovina Defence was going to review the
3 discussion that took place when the document was tendered with Witness
4 Galbraith before announcing its final position in relation to this
6 MS. GUSTAFSON: Your Honour.
7 JUDGE ORIE: We have not been informed since then about final
8 positions taken by the parties.
9 Ms. Gustafson.
10 MS. GUSTAFSON: If I could just clarify, the document was
11 tendered through Mr. Galbraith but it was fact part of the bar table
12 submission so it wasn't discussed in Mr. Galbraith's testimony.
13 JUDGE ORIE: Yes. No, but it was tendered in relation to his
15 MS. GUSTAFSON: It was tendered in relation to Mr. Galbraith's
16 testimony, we didn't hear any objections subsequent to that. It was then
17 used with Witness Vecerina and that's when the discussion arose.
18 JUDGE ORIE: Mr. Misetic.
19 MR. MISETIC: Your Honour, I am -- I have no objection to --
20 well, I guess I -- there's no foundation for where the document comes
21 from, who produced it and that is actually a disputed issue so if it is
22 tendered from the bar table, I suppose it could go to weight, but there
23 is going to be an issue about that document with respect to its
25 With respect to the fact that it was then re-tendered through
1 Witness Vecerina we would then say she was unable to identify the
2 document as a document which she saw which takes us back to the
3 authenticity of P480.
4 So I leave it in the hands of the Chamber as to how to proceed
6 JUDGE ORIE: Ms. Gustafson.
7 MS. GUSTAFSON: In relation to the authenticity and provenance I
8 can inform the Court that it was received by the Prosecution through
9 official request for assistance from the Croatian authorities.
10 JUDGE ORIE: It was -- Mr. Misetic informed about this already.
11 MS. GUSTAFSON: I think that arose with Vecerina's testimony.
12 JUDGE ORIE: Yes. I must admit that I don't remember that, but.
13 MR. MISETIC: I don't recall it either to be honest. If we could
14 ask the Prosecution to produce the RFA response for review.
15 MS. GUSTAFSON: Yes that is no problem, Your Honour. We can do
17 JUDGE ORIE: Yes.
18 MR. MISETIC: Thank you.
19 JUDGE ORIE: You've got one week for constructive cooperation
20 which of course is not the same as quarrelling.
21 MR. MISETIC: Thank you.
22 JUDGE ORIE: We'll then hear from the parties about P480 within a
23 week from now.
24 Which brings us to the other bar table documents tendered, in
25 relation to the testimony of Mr. Galbraith, which is P481 up to and
1 including P484.
2 Any objections by the Defence?
3 MR. MISETIC: If I could just have one minute, please.
4 JUDGE ORIE: Yes.
5 [Defence counsel confer]
6 MS. GUSTAFSON: Your Honour, while Mr. Misetic is consulting with
7 his colleagues I can inform the Court that P482 is labelled a book
8 written by General Ante Gotovina. In fact, the Prosecution only wishes
9 to tender the ten-page extract in the English translation in the B/C/S
10 version the entire document has been uploaded we only wish to tender
11 those ten pages and would propose replacing the entire book in B/C/S with
12 those ten pages.
13 MR. MISETIC: That is precisely the issue I was going to have, is
14 that it is our portion that this book was not intended to be an accurate
15 representation of the facts; and in fact, in the beginning of the book in
16 the original, General Gotovina explicitly says that these -- this is not
17 intended to be -- that some things have been changed and altered in terms
18 how they really happened. That is not translated in the English
19 translation of this book, and therefore we would at least ask that the
20 page of the book that explicitly at the beginning says that things, I'm
21 paraphrasing now, but essential that things are not necessarily
22 represented in the book as they actually occurred be included with that.
23 JUDGE ORIE: It ain't necessarily so.
24 MR. MISETIC: Yes, correct.
25 MS. GUSTAFSON: [Overlapping speakers] ...
1 JUDGE ORIE: So then I take it that the party also agree on what
2 will be uploaded, what is to be added, because if the original book is --
3 in the B/C/S version is -- the document to be tendered, then of course
4 portions which are not translated have to be translated.
5 MR. MISETIC: Correct.
6 JUDGE ORIE: -- in order to fully reflect in English what is
7 tendered in the original.
8 MR. MISETIC: Yes.
9 JUDGE ORIE: May I take it that you could come to agreement on
10 those pages.
11 MR. MISETIC: I believe so.
12 JUDGE ORIE: If you would like to add other pages which you think
13 are relevant whereas Ms. Gustafson says the other pages are not relevant
14 that you come to agreement on that, that we get the -- it ain't
15 necessarily so clause in evidence as well.
16 MR. MISETIC: It shouldn't be a problem.
17 JUDGE ORIE: Shouldn't be a problem. Then on the other ones
18 that's, 481, 483, and 484; any objections?
19 MR. MISETIC: No.
20 MR. KAY: No, Your Honour.
21 JUDGE ORIE: I see all Defence teams confirming. There are no
22 objections. Which means that P481, P483 and P484 are admitted into
23 evidence and that the Chamber will receive further information about
24 P482, within the next two weeks.
25 MR. MISETIC: That's more than enough, Your Honour. Thank you.
1 JUDGE ORIE: Yes.
2 Then we move on to P505 which is a document dated the 13th of
3 March, 1996, which is described as a response of Mr. Markac to
4 Mr. Jarnjak about a letter received from E. Rehn.
5 Now the issue here was that the document was MFI'd because
6 Mr. Mikulicic, you questioned the authenticity of this document. It was
7 then announced that the Prosecution would tender this document again
8 during testimony of a future witness who, as was said, may be able to
9 testify about this document.
10 Ms. Gustafson, of course meanwhile we have heard the testimony of
11 Ms. Rehn, but I take it that did you not have Ms. Rehn on your mind when
12 you were talking about the future witness, because it is about her
13 letter; but I don't know whether she is acquainted with the internal
14 correspondence within the Republic of Croatia
15 MS. GUSTAFSON: Your Honour, I think that's correct. Ms. Rehn in
16 any event has testified, and I don't believe she added anything to this
17 document. I can submit that it is our submission that the document is
18 prima facie relevant and probative; it was received again through an
19 official request for assistance the lack of a signature goes at most to
20 the weight of the document; and P622 which is a later -- which is also on
21 the MFI
22 investigation administration of the MUP of November 2001, refers
23 specifically to this document by name refers to the official statement in
24 reply to the letter of E. Rehn
25 police sector. It describes the version of events set out in this
1 document in almost the exact same manner and in our submission that adds
2 to the weight and authenticity of this document.
3 JUDGE ORIE: Yes. Let me just see -- the witness -- the future
4 witness is non-existent anymore.
5 MS. GUSTAFSON: Your Honour, I can make inquiries I'm not sure
6 personally who that witness is.
7 JUDGE ORIE: Yes.
8 Mr. Mikulicic.
9 MR. MIKULICIC: Your Honour, my position is very the same. This
10 document is not only unsigned but unstamped and unofficially dated and
11 classified as an official document and that was my primary concern, and
12 we try to establish the authenticity of this document via the Witness
13 Janic; and as we can remember, this witness clearly stated that this
14 document doesn't seems to be an official document, as it used to be
15 issued by the Ministry of Interior. Therefore, I affirmly say with my
16 objections on the first time.
17 JUDGE ORIE: Yes. I think new for the Chamber at this moment is
18 the origin of this document, that it was received through a RFA. I think
19 that we were not informed about that at an earlier stage it not being
20 very relevant because we expect add future witness, and at the time when
21 we considered this document, of course we had not considered it in
22 relation with a document which now is P622.
23 Therefore, I think it would not be very wise to -- to decide the
24 matter immediately.
25 [Trial Chamber confers]
1 JUDGE ORIE: The Chamber gives an opportunity to the parties to
2 make brief written submissions, focussed on the admissibility of this
3 document within one week from now, and of course expects the parties to
4 include the new elements or even unknown elements up till this moment so
5 that the Chamber can better prepare for a decision on the admission of
7 Ms. Gustafson, I take it that you will then also inform the
8 Chamber about whether there is an future witness who could give further
10 MS. GUSTAFSON: We can include that in your written submissions
11 Your Honour.
12 JUDGE ORIE: Yes. If of course you would know that the future
13 witness will appear and will be able, then, of course, we could safe
14 ourselves the effort of making written submissions and then, of course,
15 we would wait until we've heard the testimony of that witness. If that
16 clarifies the issue, fine; if not, we still could then invite the parties
17 to make further submissions.
18 MR. MIKULICIC: Yes, Your Honour, in that case I will expect a
19 statement from the Prosecution office whether this is an potential
20 witness of this document or not.
21 JUDGE ORIE: Yes, if you would first verify that, inform
22 Mr. Mikulicic about it, and then you have a week to phrase your short
23 written submissions on the matter, or, of course, come within agreement.
24 Then I move on to P582. That is an Official Note of the Ministry
25 of Interior, interview with Zdravko Janic in relation to the Grubori
2 The Defence has raised objections to the document. It was not
3 clear what its origin was or its authenticity.
4 The Prosecution was then invited to submit anything in relation
5 to the authenticity of this document.
6 Ms. Gustafson, I don't think that we received, until now, any
7 further information.
8 MS. GUSTAFSON: No, Your Honour. However, I believe the witness
9 authenticated the document on the stand. It was shown to him, and he
10 acknowledged that he had been in an interview with the MUP and that this
11 was a note taken in connection with that interview. I don't believe the
12 authenticity is something that --
13 JUDGE ORIE: Nevertheless, it was challenged. Mr. Mikulicic.
14 MR. MIKULICIC: Yes, Your Honour. I think it is not a problem in
15 a -- and an issue that there was an interview with Mr. Janic and the
16 minister of the interior. The problem is that this document is not
17 the -- as we understand the statement of Mr. Janic because it was not
18 signed. This is only a note that there was an interview and there is an
19 interpretation of the official person in the Ministry of Interior and
20 what was the subject of this interview. That is not in dispute is all.
21 But what is in dispute that this is not a statement of Mr. Janic. That
22 was the objection raised from the Defence.
23 JUDGE ORIE: Yes. It is it a contemporaneous document?
24 MR. MIKULICIC: It's, Your Honour.
25 JUDGE ORIE: Does your -- do your objections go to weight or to
2 MR. MIKULICIC: My objections goes to the weight, not to
3 admissibility. So as it refers to our position, we are not objecting the
4 admissibility of this document but we simply would like to state very
5 clearly that this is not a statement for Mr. Janic.
6 JUDGE ORIE: Yes, that is also now on the record and it is also
7 on the record that you consider it is appropriate for this Chamber to
8 keep this in mind, if we give weight any -- and if we give any weight,
9 what weight to this document, which, you say, is not a statement, in the
10 sense that it is a reflection of the words spoken by Mr. Janic during an
11 interview he does not challenge he had with the ministry; but he has not
12 confirmed by signing that it reflects his words, and we should keep that
13 in mind when giving weight to this document.
14 MR. MIKULICIC: I'm much obliged, Your Honour.
15 JUDGE ORIE: Thank you. Then the Chamber admits into evidence
17 I move on to a series of documents, which is P605, up to and
18 including P626. They were tendered across the bar table. At that time,
19 on the 24th of June, the numbers were assigned.
20 Any objections from the Defence?
21 MR. MIKULICIC: No objection, Your Honour.
22 JUDGE ORIE: Same Mr. Misetic, same Mr. Kay.
23 That means that the Chamber now admits into evidence P605, up to
24 and including P626.
25 I now come to P657, up to and including P674, with an exception
1 in relation to 659. For 659, the English translation was missing for the
2 Exhibit and needed to be uploaded. I was informed but I have not
3 verified that yet, that it is still missing.
4 Ms. Gustafson.
5 MS. GUSTAFSON: That's correct, Your Honour, we're still awaiting
6 that translation.
7 JUDGE ORIE: Any idea of how much thyme would take?
8 MS. GUSTAFSON: I would -- I'd have to look into that and make
9 inquiries, Your Honour.
10 JUDGE ORIE: Yes.
11 MS. GUSTAFSON: I don't know.
12 JUDGE ORIE: Then are there apart from this problem with 659 are
13 there any other concerns or objections about P657, up to and including
15 MR. MISETIC: No, Your Honour.
16 JUDGE ORIE: And that's true for all Defence teams.
17 The Chamber admits into evidence P657, P658, P660, up to and
18 including P674.
19 The next item on the list is P700. That's the album of
20 photographs of bodies and sites of crimes.
21 Any objections against P700.
22 MR. MISETIC: No, Your Honour.
23 JUDGE ORIE: Same for the other Defence.
24 P700 is admitted into evidence.
25 There were objections against P701 and P703, which we find in
1 written submissions. These are documents which were attached to the
2 statement of Alun Roberts.
3 The Chamber would like to postpone any decision on P701, P703,
4 and P704, but would like to know whether there are any objections against
6 MR. MISETIC: No, Your Honour.
7 JUDGE ORIE: No objection against P702. P702 is admitted into
9 The other numbers just mentioned, 701, 703, and 704, remain on
10 the MFI
11 Then the next series, P705, up to and including P720, associated
12 exhibits tendered by the Prosecution along with the 92 ter statement of
13 Witness Roberts.
14 Any objections?
15 MR. MISETIC: No, Your Honour.
16 MR. MIKULICIC: No, Your Honour.
17 JUDGE ORIE: Therefore, in the absence of objections, P705, up to
18 and including P720 are admitted into evidence.
19 I have no further items on my list.
20 MR. KAY: Your Honour, I do.
21 There was a collection of letters put to General Forand by me in
22 cross-examination, dealing with an issue that arose ex improviso
23 concerning the number of letters that Mr. Cermak had written. Your
24 Honour will recollect General Forand said there were three letters and
25 overnight I put together a small archive of 13. But some of those have
1 come into evidence in different ways, but to deal with the issue, we put
2 it in as a collective; and I know it reflects maybe three or four other
3 letters that are in evidence any way, but the suggestion from my part
4 that the collective or library or archive, however it be called, be given
5 a single exhibit number rather than breaking up the letters and giving
6 them separate numbers when -- when the content in that form probably has
7 no -- no interest. And that was my suggestion at the time, but I
8 remember the Court was very busy at the time. We didn't have the
9 opportunity to expand it further, but maybe the time that has passed
10 allows one to reflect upon how the matter should be dealt with.
11 JUDGE ORIE: Ms. Gustafson, if it may come as a bit -- of course
12 you may not have prepared for this. Would there be an objection against
13 the bundle of the letters mainly for the purpose to establish how many
14 letters were sent on the relevant subject or subjects, to have them
15 bundled, to have them assigned one exhibit number, and to them admitted
16 into evidence.
17 MS. GUSTAFSON: Your Honour, in principle, no; but as you say I'm
18 not familiar with the issue. I'd have to discuss it with Mr. Tieger.
19 JUDGE ORIE: Then I suggest, Mr. Kay, that you briefly consult
20 with the Prosecution in the coming days which letters exactly and to be
21 quite honest, I don't know which member of the Prosecution team dealt
22 with the issue at that time, who was in Court. Perhaps contact him,
23 explain again and if there would be a joint position by the parties or
24 any other suggestion how to seek to achieve what you wish to achieve that
25 the Chamber gets a proper impression of -- of responses sent by the
1 accused that we'll then deal with it.
2 MR. KAY: Of course, Your Honour, it was 2D03-0221.
3 JUDGE ORIE: And that's the bundle.
4 MR. KAY: That's the bundle, the collective, and it's 6th of
5 June, transcript number -- transcript page 518, lines 2 to 6.
6 JUDGE ORIE: And do you remember who was representing the
7 Prosecution that day?
8 MR. KAY: Mr. Tieger dealt with the evidence of General Forand.
9 JUDGE ORIE: Yes. Then I suggest that, Ms. Gustafson, that you
10 pass the -- this information to Mr. Tieger and that Mr. Tieger and
11 Mr. Kay will find a suitable solution for providing the Chamber with the
12 relevant material and that once this is done and I take it that can be
13 done in -- within one week, that, Mr. Kay, you then come back to the
14 Chamber with it. A number will be assigned, and the Chamber will decide
15 on the admission of the bundle, the letter archive of 13 letters.
16 MS. GUSTAFSON: Certainly, Your Honour. Thank you.
17 JUDGE ORIE: Any other matters?
18 Mr. Misetic.
19 Then I would like to remind the parties that an e-mail message
20 was sent to them on the 25th of July with the following text:
21 "Dear parties, the Chamber would be grateful if the parties could
22 inform it which admitted exhibits, if any, still have translation issues
23 with either the English or B/C/S versions still to be updated in e-court.
24 An e-mail to the Chamber's legal staff would be sufficient for this
1 I was informed that no response have been received by
2 Mr. El Jundi on this invitation. Hopefully, of course, we expect the
3 answer that there are translation issues remaining in relation to
4 exhibits that were already admitted.
5 Could we expect within three days that the parties will respond
6 to the request of Mr. El Jundi 25th of July?
7 [Trial Chamber and legal officer confer]
8 [Trial Chamber and registrar confer]
9 JUDGE ORIE: Since all the items of the MFI list have been dealt
10 with, the Chamber would like to deliver the discussion on the videolink
11 motion for Witness 24.
12 It's a discussion on the Prosecution's motion for Witness 24's
13 evidence to be heard via videoconference link.
14 On the 15th of August, 2008, the Prosecution filed a motion
15 requesting to hear Witness 24's testimony via videoconference link. On
16 the 19th of August 2008 and the 21st of August 2008, the Gotovina and
17 Cermak Defence respectively filed responses to the motion, neither of
18 which opposed the motion.
19 On the 21st of August, 2008, the Markac Defence filed its
20 response objecting to the motion on the grounds that it was not
21 substantiated by medical documentation. On the 22nd of August, 2008
22 Chamber decided to grant the motion and communicated this informally to
23 the parties and the Register.
24 According to Rule 81 bis of the Tribunal's Rules of Procedure and
25 Evidence, a Chamber may order that proceedings be conducted by way of a
1 videoconference link if it is consistent with the interests of justice.
2 The test of Rule 81 bis is met if the witness is unable to come to the
3 Tribunal, if the testimony of the witness is sufficiently important to
4 make it unfair to the requesting party to proceed without it, and if the
5 accused is not prejudiced in the exercise of his or her right to confront
6 the witness.
7 An investigator of the Office of the Prosecutor informed
8 Witness 24 that he would be called to testify at the Tribunal in
9 The Hague
10 willing to testify but that he has concerns travelling to The Hague due
11 to his health condition. The investigator, accompanied by a lawyer of
12 the Office of the Prosecutor, visited the witness on the 4th of April,
13 2007, and called the witness on the 13th of August, 2008. According to
14 the declaration of the investigator of the 13th of August, 2008
15 witness stated that he suffers from high blood pressure, he regularly
16 takes medicine for the high level of fat in his blood and to improve his
18 The witness also has chronic pain in his back and shoulders. As
19 a result, the witness does not go far outside his house and is not able
20 to travel by air. The witness is not able to sit in the same positions
21 for a long period of time because it will cause numbness in his legs and
22 body. Further, the wife of the witness is in a worse condition than the
23 witness, and the witness would prefer to stay close to home because of
25 In general, an accurate assessment of the witness's health is
1 best made by medical professionals and not by the witness himself. In
2 this case, however, the Chamber considers that it has no reason to doubt
3 the health problems raised by the witness, in light of the age and the
4 extent of the health problems, including that he is experiencing chronic
5 pains limiting him in his movements and mobility. The Chamber further
6 considers the concerns expressed by the witness that he would have to
7 leave his wife, who is in a worse condition than he is.
8 The Chamber, therefore, finds that the witness is unable to
9 travel to The Hague
10 eye-witness testimony about one of the scheduled killings alleged in the
11 indictment, the Chamber is satisfied that his testimony will be
12 sufficiently important to make it unfair to the Prosecution to proceed
13 without it.
14 Finally, the Defence has not argued, and the Chamber does not
15 find, that the accused would be prejudiced in the exercise of his right
16 to confront the witness.
17 Consequently the Chamber find that it is in the interests of
18 justice to grant the Prosecution's request to hear Witness 24's testimony
19 via videoconference link and the Prosecution motion is therefore granted.
20 And this concludes the Chamber's ruling on this matter.
21 Is there any other procedural or practical matter to be raised by
22 any of the parties?
23 Mr. Waespi.
24 MR. WAESPI: Thank you, Mr. President. In relation to
25 Witness 24, there was a request, you recall, by the lawyer of the witness
1 to be present in the so-called courtroom in Zagreb.
2 JUDGE ORIE: Yes. The presence of a lawyer who represents that
3 witness in a civil case, we have received, I think, informally the view
4 of - I don't know - at least one of the Defence teams.
5 Mr. Misetic.
6 MR. MISETIC: We have not stated a position on it, but we would
7 object as well.
8 MR. KAY: I think we made a filing.
9 JUDGE ORIE: You made a filing. I said I have seen a filing also
10 objecting the presence of the -- of the lawyer.
11 Mr. Mikulicic.
12 MR. MIKULICIC: We have objections as well, Your Honour.
13 MR. MISETIC: I would just add our position our objection also to
14 take into consideration that we had Mr. Janic present, and he was in fact
15 identified as a suspect there may be in fact other witnesses that will be
16 coming forward that have been identified previously by the Prosecution as
17 suspects. If this witness is allowed presence of counsel, I'm not sure
18 how we would have to deal the issue then of other witnesses coming
19 forward who in fact have a -- perhaps a more substantiated interest in
20 having counsel present and how that would affect their right to ask for
21 counsel to be present there as well.
22 JUDGE ORIE: I do understand, but Mr. Waespi correct me if I'm
23 wrong, that the presence of counsel would not include any active role,
24 counsel representing this witness in a civil matter, not in any
25 investigation against -- investigation against him related to offences or
1 whatever, and there are -- and perhaps I put the matter to you in the
2 following way. There are two elements. The first element is what should
3 a counsel do? A witness doesn't need a counsel. He just has to answer
4 the questions; that's one. The other aspect of it is that anyone could
5 sit here, observe what happens in this courtroom. It is not limited to
6 a --
7 MR. MISETIC: That was going to my point but with a slight
8 variation, Your Honour.
9 JUDGE ORIE: Yes.
10 MR. MISETIC: Which is if witness had come to testify in
11 The Hague
12 allowed to sit in the gallery like everyone else, but would not be
13 allowed as far as I know to sit in the courtroom here with any of us.
14 JUDGE ORIE: We have had situations in which counsel were
15 present, but mainly for other reasons, mainly in relation to
16 self-incrimination; and I remember that sometimes counsel for an accused
17 has suggested that at a certain moment that the witness would need the
18 assistance of counsel in order to make this right, not to incriminate
20 MR. MISETIC: Right.
21 JUDGE ORIE: But that apparently is not the situation.
22 MR. MISETIC: I guess the specific situation would have to be is
23 there a precedent for an ordinary witness with no issue of
24 self-incrimination asking for counsel to come in the courtroom and sit
25 and be present. I have to admit I'm not aware of any such example and I
1 would reserve because here there should be no additional benefits to a
2 witness because the court is extending the courtesy of allowing the
3 witness to sit in effect in Zagreb
4 It should be treated as if that witness is in fact in the courtroom
5 simply by videolink and not that he is not in the courtroom and therefore
6 we can invite third parties to be present in the room with him for the
7 sake of consistency. Unless there is jurisprudence of this Tribunal that
8 allows in those situations; I don't think there is any basis to allow a
9 counsel of a witness to be present in the courtroom for no purpose.
10 JUDGE ORIE: You say no advantage. But of course there is
11 another aspect to that. Usually in the rooms where the videolink is
12 done, they are usually no public galleries there. So, therefore no
13 advantage, could I translate it to say no disadvantage as well?
14 MR. MISETIC: Well, it depends I don't know what the purpose is
15 why -- there has been no presentation as to why the person wants his
16 lawyer present or why the lawyer wants to be present. I would add that
17 these preceding are broadcast over the internet and the lawyer wants to
18 follow the proceedings, he is more than able to over the Internet but
19 absence any representation as to why either the witness needs him present
20 or the lawyer wishes to be present, whatever the case may be, I don't
21 think there has been a basis established.
22 JUDGE ORIE: Yes. Of course, it is not exactly the same but when
23 considering this, if you allow such a person for example if there would
24 be a part in private session that person would, in my view, if you would
25 allow it, would have to leave that room. That's for sure. So we are
1 talking about two elements: What would be the role of a lawyer; and
2 second, how to deal with the -- in the specific circumstances with the
3 aspect of the public being able to follow the proceedings directly and
4 not only through a camera with a delay of half an hour, the Chamber would
5 just like to hear your views on the matter.
6 Is there anything to add to -- Mr. Kay.
7 MR. KAY: It is very difficult to see what interest is to be
8 protected in relation to giving evidence in this case. It occurred to me
9 looking at the motion that it was a motion that was being put in for the
10 sake of it because the witness requested it but without any clear
11 explanation as to what interests required to be protect the by a lawyer
12 coming into the courtroom and instinctively rejects that.
13 JUDGE ORIE: You would say that a lawyer in the courtroom is --
14 is to be avoided?
15 MR. KAY: Absolutely, Your Honour, and I would heartily recommend
16 the proceedings otherwise.
17 JUDGE ORIE: I will hear the other parties about this part of
18 Mr. Kay's statement.
19 MR. KAY: No. It does seem to be an imposition here for no valid
20 reason that can be shown how the interests of that witness are in any way
21 going to be affected by giving testimony in this case. And in our
22 submission, the Court really should be in control of its own procedures
23 without having the interference, if you like, or potential interference
24 by someone bringing attorney inside.
25 One has the situation where a witness may be giving -- because of
1 his position, information about the background to the case because of his
2 relevance as a state official and therefore the government asks, I
3 believe, Mr. Galbraith had; and I remember Mr. Galbraith having the
4 attorney from the US
5 that there was an interest and an issue connected with the proceedings
6 and the purpose of the witness being here.
7 But, in my submission that matter had not been made -- the case
8 had not been made, if you like, for that position, that the -- that was
9 being addressed on behalf of the witness here. It was apparent and
10 obvious to see it in relation to Mr. Galbraith, but there didn't seemed
11 to be no good cause which is why we felt it was necessary to make a token
12 objection, if you like, but an objection nevertheless on the basis of the
13 ground that was being made out.
14 Without having a particular interest in the outcome.
15 MR. KEHOE: If I may, Judge, on this. With regard to
16 Ambassador Galbraith obviously there was some Rule 70 concerns that the
17 Chamber was concerned about as well as the Prosecution and the Defence.
18 So I think that the standard practice in the Tribunal when we
19 were engaged in Rule 70-type material with witnesses that there would be
20 a representative from the respective countries; and I don't present
21 myself as an expert on the jurisprudence in all civil Courts, but I have
22 appeared in some of them throughout the world as well as common law
23 courts and the only instances when such a procedure I have seen has been
24 allowed both in a civil setting which is very, very narrow and under the
25 common-law setting is when someone said he or she had a incrimination or
1 concern, and should I answer this question, I could incriminate myself
2 and I need to consult with counsel.
3 Frankly, I have even seen judges say, Well we need to find you a
4 lawyer to consult. There has been no such articulation of that concern
5 by this witness, so going back to my learned friend Mr. Kay said what
6 role does this person have, now, I understand the practical concern that
7 there is no gallery in whatever location for them to do that, but we do
8 have a tension here whether or not this person is going to obstruct or
9 affect somebody where he or she would not be able to, as Mr. Misetic
10 said, they would be seated here.
11 Maybe some other location down there that would put that person
12 in some gallery-type scenario would be the answer.
13 MR. MISETIC: Your Honour, I'm sorry two of us now on our feet
14 from the Gotovina Defence but that did raise one issue with me if the
15 lawyer is not visible on camera to us, sometimes people communicate
16 simply through gestures or eye contact with each other that there way be
17 some ability to influence the witness that we wouldn't be able to see on
18 camera here.
19 JUDGE ORIE: Yes, to be -- the focus until now has been on the
20 role of the lawyer being present. Of course, I also introduced also the
21 issue of the absence of a gallery for the public. If the Chamber would
22 be inclined and I'm quite, quite frankly, I'm speaking on behalf of
23 myself, we first wanted to hear from you before we would discuss it among
24 ourselves, on my mind, if he was just an observer without any role that
25 would automatically include that he would put in such a position that no
1 eye contact would be possible. That's -- I gave that some thought. This
2 is just, at this moment, my personal position on that. And I would
3 invite you also to perhaps address that if he is not visible for the
4 witness and if at the first even attempt to intervene he would be
5 immediately removed from the room in which the -- in which the witness
6 is, whether you would take still the same position.
7 MR. KEHOE: Your Honour, can we just have two minutes for the
8 Defence to just talk about this together and discuss this.
9 JUDGE ORIE: Yes. At the same time, I'm looking at the clock.
10 We are about to -- I would say we would conclude. If you can do it in
11 one or two minutes.
12 MR. KEHOE: I think we can talk among ourselves.
13 JUDGE ORIE: Perhaps it is better than to grant a couple of
14 minutes to the Defence.
15 Mr. Waespi is there anything you would like to add after that?
16 Of course you do not know what is said.
17 MR. WAESPI: Yes, not much Mr. President.
18 JUDGE ORIE: Not much, then I suggest rather than having a break
19 of half an hour and then to restart, to just take another -- not more
20 than five minutes all together.
21 MR. MIKULICIC: Your Honour, in the meantime --
22 [Defence counsel confer]
23 [Trial Chamber confers]
24 JUDGE ORIE: Mr. Mikulicic.
25 MR. MIKULICIC: Yes, Your Honour, if I may add something.
1 I was a couple of times present in the UN premises in Zagreb
2 while some persons were interviewed and I'm sure there is a possibility
3 that the person who would like to follow the interview could be present
4 in another room, and follow the interview via TV directly without any
6 So that way if that is possible right now, I'm sure that it is
7 because it was -- it was pattern on those days that I was present.
8 So if it is the case in such a presence, in another room, that we
9 would avoid any contact, I mean, eye contact or gesture contact or
10 whatever, and we have no problem with this. If that could be organised
11 that way.
12 JUDGE ORIE: Yes. That almost goes without saying that there
13 would be not very good grounds to oppose against that but, Mr. Kehoe.
14 MR. KEHOE: But absence the suggestion that Mr. Mikulicic just
15 put forward, putting someone out of eye contact is the key that is
16 something that Mr. Mikulicic and all of us were trying to get to, but out
17 of eye contact would be mine.
18 JUDGE ORIE: Out of eye contact you would have no problem.
19 MR. KEHOE: That's right. But the ideal is obviously the
20 scenario that was just described.
21 JUDGE ORIE: Understood.
22 Mr. Waespi would you like to add anything.
23 MR. WAESPI: Not really, Mr. President. I agree that lawyer
24 shouldn't have any role, shouldn't play any active role, of course. He
25 should be treated as you suggested like a visitor and if the room is
1 large enough so that he could be place so that there is no eye contact
2 between the witness and visitor and this visitor or participant, I think
3 that would be a practical solution.
4 JUDGE ORIE: Sure.
5 MR. WAESPI: Also we would make a motion as [Overlapping
6 speakers] ...
7 JUDGE ORIE: [Overlapping speakers] ... an informal request, yes
8 that is clear.
9 Mr. Waespi, it will be your witness. It was your request. Would
10 you please communicate on all practical relevant issues such as whether
11 there is an possibility to follow the proceedings on a television screen
12 in the next door room which, I think, would be that the lawyers is not
13 present. Could you please explore the practical aspects of it, inform
14 the Chamber about it, send a copy to the Defence, and the Chamber will
15 consider and, as I said before, what I earlier said, the thoughts I
16 developed for myself, are thoughts which are a part of a process of
17 thinking and not the result of any completed development or thoughts. It
18 was just -- and the Chamber as I said before as well has not considered
19 the matter before having heard your observations in this respect.
20 MR. KAY: Your Honour, may we just confirm that Your Honours'
21 suggestion was something that we had no issue with at all.
22 JUDGE ORIE: Okay. Then there's no other matter, I think on our
23 agenda. I would like to thank the interpreters, transcribers, everyone
24 who assisted us, today without security so they are missing this word of
25 thank; we'd like to thank you for your patience.
1 We adjourn until tomorrow, Thursday, 28th of August, in Courtroom
3 --- Whereupon the hearing adjourned at 3.58 p.m.
4 to be reconvened on Thursday, the 28th day of
5 August, 2008, at 3.00 p.m.