Tribunal Criminal Tribunal for the Former Yugoslavia

Page 11027

 1                           Monday, 3 November 2008

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 9.07 a.m.

 5             JUDGE ORIE:  Good morning to everyone.

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

 7             THE REGISTRAR:  Good morning, Your Honours.  Good morning 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:  I heard a lot of noise, but I don't hear my own

11     voice.  I was plugged in, in the wrong way.

12             Again, good morning.  Before we start, Mr. Russo, I see your

13     present.  There was a request by the Defence to make submissions on

14     expert reports and new attachments and new addenda to these reports.

15             Mr. Misetic.

16             MR. MISETIC:  Thank you, Mr. President.

17             As the Court is aware, in our motion for leave to reply to the

18     Prosecution submission on the Theunens addendum, we believe that leave

19     should have been sought for that addendum.

20             In between our motion for leave and the filing of the Konings

21     addendum, I had sent an e-mail to the Chamber and to the parties, saying

22     that I believe that what was taking place was that if the Chamber did

23     not -- that I had asked the Chamber to instruct the Prosecution not to

24     file any additional addenda without seeking leave until the matter of the

25     Theunens addendum had been resolved.  Despite that e-mail, the

Page 11028

 1     Prosecution, nevertheless, filed the Konings addendum without seeking

 2     leave, and, Your Honour, that is why I would ask for this opportunity to

 3     address the Chamber.  We have not, obviously, been granted leave to reply

 4     to the Prosecution's submission earlier on Theunens.

 5             So it seems that the Prosecution's position, based on their

 6     response on Theunens, is that no order was issued by the Trial Chamber

 7     under Rule 94 and, therefore, their disclosures of expert reports prior

 8     to trial were simply self-imposed deadlines which were of a character

 9     that was simply of the Prosecution's own goodwill in disclosing addenda.

10     I believe that seriously mischaracterizes the record.  I would like to

11     show via Sanction an e-mail that was sent by Chambers sent to Mr. Tieger

12     from the Prosecutor's office.  It was sent 19th of December, 2007.  I

13     will show it on Sanction now.

14             This is an e-mail that was sent on the 19th of December by

15     Mr. Pittman.  It says:  "Dear Alan, at the last Status Conference, there

16     was a discussion concerning the filing of the Prosecution expert reports,

17     including that of Reynaud Theunens which was to be filed by 14 December."

18             It cites the transcript.  "The Trial Chamber notes that the

19     report has not yet been filed and that no reasons have been given for the

20     delay."

21             MR. RUSSO:  Sorry, Your Honour, if I could just interpose an

22     objection, just very quickly, I the Court will rule on it, Your Honour.

23             It was my understanding that the Defence wanted to address the

24     issue of the Konings addendum and not use this as an opportunity to argue

25     the Reynaud addendum, which the Court did not grant leave to reply to the

Page 11029

 1     Defence.

 2             JUDGE ORIE:  Nevertheless, there is so much related, Mr. Russo,

 3     that it would be a bit artificial just to give up one of them, because

 4     the issue appears to be the same in respect of both reports.

 5             MR. MISETIC:  Thank you, Mr. President.

 6             JUDGE ORIE:  Please proceed.

 7             MR. MISETIC:  It concludes:  "The Trial Chamber would, therefore,

 8     like an update at your earliest convenience."

 9             Now, from Mr. Pittman's e-mail, I believe it is it clear that

10     Judge Moloto, as the Pre-Trial Judge -- actually, I believe, Your Honour,

11     by that point, if I'm not mistaken, I believe Your Honour was already

12     made the Pre-Trial Judge at that time.  So, Your Honour, this is

13     actually -- is that right?  It is roughly around the same time-period, I

14     could be mistaken, Your Honour, but --

15             JUDGE ORIE:  It was approximately at that time that I took over

16     from Judge Moloto.

17             MR. MISETIC:  Yes, Your Honour.

18             It is clear from the record that the discussion concerning the

19     filing of expert reports was with the other Judge Moloto.  Whether this

20     e-mail was sent when Your Honour was the Presiding Judge or the Pre-Trial

21     Judge or Judge Moloto, I'm not exactly certain at the moment, but it's

22     roughly the same time-period.

23             In any event, Chambers are Chambers, Chambers clearly understood

24     that these were not some sort of good will deadlines given by the

25     Prosecution.  There was, as Your Honour will recall from prior argument

Page 11030

 1     concerning the Rule 54 business motion to Croatia, extensive discussion

 2     in the 2007 at both 65 ter conferences and at Status Conference about the

 3     Defence's desire and the Trial Chamber's desire to ensure that the

 4     Prosecution's expert reports were filed in a timely manner before trial.

 5             There is no conceivable reason, given the state of the record,

 6     given what believe is the clear position of the Trial Chamber in

 7     December 2007, that the Prosecution should be allowed now to file, under

 8     the guise that they are just addenda, what is -- what amounts to, at

 9     least certainly in the case of Konings, a second separate report.

10     Mr. Konings is not in any way clarifying his initial report.  He is now

11     submitted a second report which very much addresses particular issues,

12     including targets, target selection, et cetera, which were not part of,

13     in any substantial way, a part of his initial report.  This was a second

14     report.

15             I believe the Trial Chamber hats been on notice for several

16     months that the Defence would -- has strongly objected and would continue

17     to strongly object to new reports from experts.  This is a question of

18     fairness for the Defence, Your Honours.  There has been no motion for

19     leave sought by the Prosecution, so we have no understanding from the

20     Prosecution as to why this couldn't have been done prior to trial, as had

21     been agreed.  As I understand it, the documents used for the report,

22     almost of all of them were not only in the possession of OTP but in the

23     position of the expert prior to the time that he rendered his -- his

24     expert report.  That certainly goes for Konings.  I believe, with respect

25     to Theunens, the documents, many of them, were in OTP's possession.

Page 11031

 1             So this, again, leaves us in the position of the OTP avoiding

 2     what was clearly discussed at the Rule 54 bis hearing, which was an

 3     explanation the Prosecution as to why this wasn't done prior to trial.

 4     The practical effect of this is, in terms of fairness, is we now have a

 5     new report from Konings that was given to us 32 days before he is

 6     scheduled to testify...

 7             I'll slow down for the interpreters and court reporters, Your

 8     Honours.

 9             ...  32 days before he is scheduled to testify.  The Court itself

10     can make the clarification, but I believe at least half of the witnesses,

11     if not more, that have appeared have talked about shelling.  We now have

12     a report where the opportunity to put matters in Mr. Konings' report to

13     witnesses of the Prosecution is now been lost.  There, of course, may be

14     issues that overlap and that were covered, but, nevertheless, there are

15     other issues in his report that cannot be put to witnesses that the

16     Prosecution has called that contradict some of the findings in

17     Mr. Konings's report.  We've lost that opportunity.

18             Just as importantly, the Prosecution doesn't explain why that

19     opportunity was lost, doesn't explain why this report wasn't filed in a

20     timely manner prior to trial.

21             So, Your Honours, my position is that we have substantial reasons

22     to discuss and address with the Trial Chamber whether these addenda are

23     admissible.  We believe that the first step is to require the Prosecution

24     to seek leave.  Rule 94 bis (A) is, I believe, clear and I see no reason

25     why the Prosecution should be allowed to take the position that, as long

Page 11032

 1     as this trial is going on, they can just submit expert reports to us

 2     whenever they please.  That's apparently their position now because they

 3     say there was never an order, there was never an obligation to provide

 4     the report in the first place.

 5             So, in theory, and, ultimately, this is it my main concern, Your

 6     Honour, we have a Rule 54 bis motion which the Republic of Croatia

 7     responded to, but the Chamber still, I believe, based on its

 8     September order, still has to review the order and will make further

 9     determinations on that Rule 54 bis request.

10             Given now that they filed a second Konings addendum, what is

11     the -- what is it going happen with the Rule 54 bis proceeding?  What

12     happens -- are we to expect now that there is a possibility that there

13     will a third addendum because they're also pursuing additional documents

14     from the Republic of Croatia on artillery?  When does it end?

15             I mean, our position is, Your Honour, that there are substantial

16     issues here, there is a threat of more addenda if the Trial Chamber does

17     not intervene, and we believe that there is no reason procedurally why

18     the Prosecution should be allowed to avoid having to disclose to the

19     Trial Chamber at least its reasons for doing this at this late stage.

20             Thank you, Your Honour.

21             JUDGE ORIE:  Mr. Kuzmanovic.

22             MR. KUZMANOVIC:  Thank you, Your Honour.

23             One -- two points I'd like to add.  One is:  We still have yet to

24     receive a translation of this report or a response to the request for

25     when a translation would be forthcoming.

Page 11033

 1             The second is:  This is an example of conforming expert reports

 2     to the Defences that have been coming into the case throughout the case.

 3     We get a report, we're supposed to respond to it, or -- that's the

 4     Prosecution's burden to give us this report to tell us what their

 5     experts's theories are.  What's happened here is, through

 6     cross-examination, various Defences have been put forth.  That has

 7     changed because of -- from the Prosecution's standpoint, because now

 8     other things that the Defence has addressed have not been addressed by

 9     their experts.  Then all of a sudden, in mid stream now, they want to

10     submit reports to the us that are -- try to conform to some of the

11     Defences that have been put forth in the case.

12             It is simply not a proper way of producing an expert report under

13     Rule 94, so we are prejudiced twice in this particular instances.

14             That's all I wanted to add Your Honour.  Thank you.

15             JUDGE ORIE:  Mr. Kay.

16             MR. KAY:  I have nothing to add because the supplementals do not

17     affect the case of Mr. Cermak.

18             JUDGE ORIE:  Mr. Russo.

19             MR. RUSSO:  Thank you, Mr. President.

20             Your Honours, it is only my intention to address the Konings

21     addendum, unless the Court would like to hear argument also with respect

22     to the addendum of Mr. Theunens.

23             JUDGE ORIE:  When I said that it was artificial to separate them

24     completely, that, of course, gives an opportunity for you to respond to

25     what has been said by Mr. Misetic in its entirety.

Page 11034

 1             MR. RUSSO:  Thank you, Mr. President.

 2             The reason I interposed an objection is because I believe that

 3     the Konings addendum is, in fact, not the same issue as the addendum of

 4     Mr. Theunens, for a very simple reason, that the court has already issued

 5     a ruling on this issue with respect to Lieutenant-Colonel Konings'

 6     report.

 7             If the Chamber will recall, the Defence filed a motion in limine,

 8     under Rule, seeking to preclude Lieutenant-Colonel Konings from offering

 9     the testimony which is in his addendum report, specifically testifying

10     with respect to whether targets selected or hit were legitimate military

11     targets.  I believe it was on the 21st of May of this year that the Court

12     issued its ruling with respect to that.

13             The context of this was that after the Lieutenant-Colonel Konings

14     filed his initial report, the Defence filed their Rule 73 motion, seeking

15     to preclude that testimony, because they said his report was not Knin

16     specific and, therefore, this testimony should not be aloud because it

17     was not specifically addressed in the original report.

18             The Court issued the rules denying that motion, and I will quote

19     the Court at paragraph 7 of that decision, and it very clearly indicates:

20     "The Prosecution is obliged to give notice of evidence that it intends to

21     present through proper disclosure.  If proper notice has been given, a

22     party may examine an expert witness with respect to matters not included

23     in his or her expert report, so long as they are within the knowledge of

24     the witness, relevant, and probative."

25             Now, it's the Prosecution's position that it was entitled to ask

Page 11035

 1     these questions of Lieutenant-Colonel Konings on the stand without having

 2     filed an addendum report.  The only issue would be notice to the Defence

 3     of what Lieutenant-Colonel Konings would testify to if asked those

 4     questions.

 5             Now, Rule 94 bis is the only procedural mechanism by which the --

 6     the Prosecution can provide normal to the Defence of what those answers

 7     will be.  So the Konings report is distinct from the Theunens report in

 8     that respect because the Court has specifically issued a ruling on this

 9     very issue.  It would be a bit in opposite if the Court had already given

10     the Prosecution permission to ask these questions through proper

11     disclosure and then to force the Prosecution to seek leave in order to

12     provide that disclosure.

13             So this was the only mechanism available to us to do so.

14             If the Court pleases, I'm happy to address the issue of

15     Mr. Theunens as well, because the Defence`s position that for some reason

16     they are prejudiced by this late disclosure of issues is not necessarily

17     accurate, especially given the fact that the Theunens report clearly

18     indicates that it is based on documentation received subsequent to the

19     filing of the original report.  The issue is one of practicality from the

20     Prosecution's perspective.

21             We have every right to issue addendums to these reports to the

22     extent they address knew information received in the ongoing

23     investigation.  Of course, the Court has not issued a rules with respect

24     to the Prosecution's 54 bis application; however, if additional

25     documentation is it forthcoming as a result of that application, the

Page 11036

 1     Prosecution has an obligation to disclose that to the Defence and to

 2     present that evidence to the Trial Chamber if it is relevant and

 3     probative to the issues before the Chamber.

 4             That's all I have, Your Honour.

 5             JUDGE ORIE:  Thank you.

 6             Mr. Misetic.

 7             MR. MISETIC:  If I can just address the issue of --

 8             JUDGE ORIE:  Very briefly, please.

 9             MR. MISETIC:  -- the 21 May - excuse me - the 21 May order that

10     Mr. Russo references.  It talks about proper disclosure.

11             Now, I believe that there's nothing inconsistent between what we

12     said in that order, which is, what is proper disclosure of an expert's

13     opinions.  If it is an expert report, which is what this is, and it was

14     disclosed under Rule 894, which is what they did, then the proper way to

15     do this would have been to file a motion for leave with the Trial Chamber

16     to file an additional report.

17             Now, whether the Trial Chamber then would have granted or would

18     not have granted leave is up to, of course, the Trial Chamber, but it

19     gives the parties the opportunity to address the matter.

20             So, Your Honour, again, I state that if it were the

21     interpretation of Mr. Russo, in essence, what it means is that in ICTY

22     proceedings, the Prosecution can file a three-page expert report, and

23     within 30 days of that expert's testimony, file 100 pages on the Defence

24     and say, "This is just disclosure of some additional questions we're

25     going to be asking him."

Page 11037

 1             I don't think that the procedural fairness that is guaranteed by

 2     this Tribunal would support such practice, and I, therefore, believe that

 3     seeking leave is not inconsistent with the notion of proper disclosure as

 4     discussed by the Trial Chamber in its order.

 5             Thank you.

 6             JUDGE ORIE:  Any other Defence counsel wish to add anything?

 7             Mr. Russo, another minute for you.

 8             MR. RUSSO:  Thank you, Mr. President.

 9             I believe it is bit unfair to characterize the situation as the

10     Defence has.

11             JUDGE ORIE:  The Chamber has noticed that the addendum is not 30

12     times the size of the original.  There is no need to expound on that.

13             MR. RUSSO:  Thank you, Mr. President.

14             JUDGE ORIE:  Nothing further?

15             Then the Chamber will consider the matter and we'll give our

16     decision.

17             Then we move on.

18             For your next witness, Mr. Russo, there's an application -- yes.

19             MR. MARGETTS:  Yes, Your Honour, Witness 84 and there is an

20     application for protective measures.

21             JUDGE ORIE:  Yes, Mr. Margetts, as a matter of fact, since the

22     suggestion was that if the application would be granted, that the more or

23     less logical consequence would be that we would hear the evidence of this

24     witness in closed session, rather than in the situation of face

25     distortion, voice distortion.

Page 11038

 1             So, therefore, I suggest that we also hear and give an

 2     opportunity to put further questions to this witness in relation to the

 3     protective measures in closed session.

 4             We move into closed session.

 5                           [Closed session]

 6      [Part of Closed Session made public by order of Trial Chamber]

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Page 11121

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23             JUDGE ORIE:  Mr. Misetic.

24             MR. MISETIC:  Yes, Your Honour, I just wanted to put on the

25     record something in light of the fact that the -- Mr. Russo, for the

Page 11122

 1     first time, raised the 21 May 2008 decision of the Trial Chamber this

 2     morning.  In reviewing that quickly, I wanted to make a couple of points.

 3             First, I did research it, Your Honour, and concerning

 4     Mr. Pittman's e-mail of the 19th of December, you appointed yourself the

 5     Pre-Trial Judge on the 11th of December.  So at the time of that e-mail,

 6     you, in fact, were the Pre-Trial Judge.

 7             The second issue is that -- the second issue is that we wish to

 8     alert the Trial Chamber to the jurisprudence of Trial Chamber I, the

 9     decision which was issued last week on a matter which I believe is quite

10     similar to the one pending before the Chamber.  It is the decision of

11     Trial Chamber I, dated 27 October 2008, decision on Defence motions to

12     exclude the expert reports of Mr. Patrick J. Treanor.

13             I call the Trial Chamber's attention to paragraphs 15 and 16, in

14     which the Trial Chamber there - and the Chamber can read it - but in

15     which the Chamber found that the Prosecution's failure to show good cause

16     as to why it was filing a second report after the deadline for filing of

17     Prosecution expert reports had passed, and that, as a result of that

18     failure, that would be a reason to strike that -- that second report.

19             This, I believe, is consistent with the position we're taking

20     here, that the Prosecution must show good cause as to why it is filing

21     these reports at this hour of the proceeding, and that is our submission,

22     Your Honour.

23             JUDGE ORIE:  Mr. Russo.

24             MR. RUSSO:  Thank you, Mr. President.

25             The Defence is, first of all, conflating the arguments that the

Page 11123

 1     Prosecution has made with respect to the Konings and the Theunens

 2     addendums.  I don't know why the Defence is characterizing the

 3     Prosecution's position regarding Rule 73 discussion of this Chamber as

 4     being raised for the first time.  The Rule 73 ruling only applies to the

 5     addendum report of Lieutenant-Colonel Konings, and this is the first time

 6     that we have addressed that issue.  The Prosecution is not taking the

 7     position that the Rule 73 ruling by this Court affects the admissibility

 8     of Mr. Theunens's addendum.

 9             The Perisic decision obviously has no effect on the Prosecution's

10     argument with respect to Konings addendum, as that is related entirely to

11     the 21st May decision by this Court.  If you want to --

12             JUDGE ORIE:  Was that what you wanted to say, Mr. Russo?

13             MR. RUSSO:  No, Your Honour, I thought he was going to interpose

14     an objection.

15             JUDGE ORIE:  Let's try to finish.

16             MR. RUSSO:  With respect to the Perisic decision, Your Honour,

17     insforas it relates to the Theunens' report, I would note, first of all,

18     that the decision is in opposite to this case, for the very clear reason

19     in the same paragraph that -- the same paragraphs that Mr. Misetic

20     mentions, that decision was based, as that Trial Chamber noted, on the

21     fact that the second report of Patrick Treanor was based entirely on

22     documents available to the Prosecution since June of 2005, prior to the

23     filing of the first report.  As we've already indicated, Mr. Theunens'

24     report is based on evidence which the Prosecution has received subsequent

25     to the filing of his first report.

Page 11124

 1             For that reason, the decision is not applicable; and in any case,

 2     it is also based on the Trial Chamber's notation that the Prosecution did

 3     not show any good cause for why the report was filed later.  In this

 4     case, Your Honours, Mr. Theunens in his addendum report provided that

 5     good cause in the introduction, by indicating that it was based only on

 6     documentation received after the filing of the first report.

 7             So, in any case, with respect to the Konings' report, even if the

 8     Perisic decision applied, which we -- our position is that it does not,

 9     this Chamber had already issued a binding decision on the parties with

10     respect to the filing of information with respect to Lieutenant-Colonel

11     Konings.  We were bound do apply it.

12             I'm sure the Defence is not taking the position that if Trial

13     Chamber -- the Perisic Trial Chamber had ruled differently from this

14     Trial Chamber, that we would be obliged to follow that Trial Chamber, as

15     opposed to ruling by this Chamber, on the exact same issue.

16             JUDGE ORIE:  That's all Trial Chamber wanted.  That helps us

17     outside.

18             MR. MISETIC:  Your Honour, if I may briefly respond.

19             JUDGE ORIE:  Yes, Mr. Misetic.  Could you try to do that in one

20     minute, please.

21             MR. MISETIC:  Yes, Your Honour.

22             First point is that the May 2 is decision is a decision to not in

23     limine bar them from filing a second report.  It is not a decision on

24     merits here as to whether they need to file or seek leave.

25             Secondly, I think the jurisprudence should be consistent in terms

Page 11125

 1     of whether or not the Prosecution has an obligation to show good cause

 2     when it seeks to admit reports after the deadline has passed.  I believe

 3     there is nothing -- there should be nothing controversial about that

 4     decision.

 5             Third, the very reason why we asked that they have to seek life

 6     is Mr. Russo, who in discussing Mr. Theunens, I believe the fact is that

 7     these are documents were in OTP's possession, but not in Mr. Theunens'

 8     possession, in which case if that's the case, we're talking about an OTP

 9     employee who didn't receive documents that are in OTP's possession.

10             And, finally, I'm not conflating the two issues.  This is a -- I

11     don't see any reason why an artillery expert should be -- have different

12     set of rules and a different set of jurisprudence than any other expert.

13     The rules for an expert witness should be the same regardless of the

14     subject matter about which the expert is testifying.  I believe those

15     rules should be consistent between Chambers.

16             And, finally, Your Honour, just so that the Court is aware of

17     procedural what we are doing here, in light of Trial Chamber I's decision

18     last week, we are, in fact, preparing a motion to strike the Theunens's

19     reports in their entirety.  So what we're dealing with here is the issue

20     of Konings and the filing of the addendum in the Konings matter.

21             Thank you, Your Honour.

22             JUDGE ORIE:  Thank you.  Mr. Russo, another 30 seconds.

23             MR. RUSSO:  Thank you, Your Honour, I will be brief.

24             The Prosecution is not arguing for a different standard to be

25     applied between the Konings and the Theunens report, the Prosecution's

Page 11126

 1     position is that the issue of the Konings report has already been

 2     litigated and decided upon by the Trial Chamber.

 3             With respect to motions to strike, Your Honour, I would ask the

 4     Court -- this is already a subject of filings before the Court, the

 5     Defence asked to argue the Konings issue orally.  I don't -- I would ask

 6     the Court to issue an order that there no further written submission with

 7     respect to either the Theunens or the Konings report, insforas those have

 8     already been brought to the attention of the Chamber and argued by the

 9     parties.

10             JUDGE ORIE:  Thank you.  The Chamber will further consider the

11     matter.

12             We were informed, first of all, that we have to return into open

13     session.  I failed to do so, and our discussion on the procedural matter

14     after the witness left --

15                           [Open session]

16             THE REGISTRAR:  Your Honours, we're back in open session.

17             JUDGE ORIE:  -- after the witness left the courtroom, I think

18     that this discussion should be public discussion, nothing else.

19             So, therefore, Mr. Registrar, if you would take the appropriate

20     action to have this part of the transcript being made public.

21             Mr. Cermak, the Chamber was informed that you are suffering, like

22     many people these days, from the flu.  If this would ever cause you any

23     problem in following the proceedings, please let us know.

24             THE ACCUSED CERMAK: [Interpretation] Thank you, Your Honour, for

25     your concern, but I can endure without any problems.  Thank you once

Page 11127

 1     again.

 2             JUDGE ORIE:  Thank you, Mr. Cermak.

 3             We will adjourn and resume on Wednesday, the 5th of November,

 4     quarter past 2.00, Courtroom III.

 5                            --- Whereupon the hearing adjourned at 1.51 p.m.,

 6                            to be reconvened on Wednesday, the 5th day of

 7                            November, 2008, at 2.15 p.m.