090224ED

Page 16678

1 JUDGE ORIE: One of the first things I'd like to do is to deal

2 with the leftovers of the 65 -- of the MFI list.

3 I do understand that a new list has been distributed, but I'm

4 still working from my own -- my old list, so I hope that creates no

5 problems.

6 Although we ended up somewhere in the -- if I could say, in the

7 Lausic area, there are a few matters which I'd like to re-visit. The

8 first one is D1083, where we were wondering whether, meanwhile,

9 Mr. Mikulicic, a translation had been received.

10 MR. MIKULICIC: Unfortunately, not, Your Honour.

11 JUDGE ORIE: Then --

12 MR. MIKULICIC: We are still waiting for the translation.

13 JUDGE ORIE: Then it remains on the list.

14 I then move to P482. That is, what pages, how many pages, are

15 tendered into evidence? The Prosecution was seeking only ten pages, but

16 then the parties would try to reach agreement on what portions would be

17 tendered and what not.

18 Has agreement been reached?

19 MR. HEDARALY: I think, Your Honour, in the last housekeeping

20 session, and agreement was reached. All that was remaining was the

21 technical aspect of uploading the right portions.

22 JUDGE ORIE: Has it been uploaded?

23 MR. HEDARALY: Yes, it is has. My case manager informs me that

24 he has. So the introduction and the portions that the Prosecution wanted

25 to introduce have been uploaded.

Page 16679

1 MR. MISETIC: I don't know if anything has changed since the last

2 time I looked at this, Your Honour, but there was a portion that we

3 wanted to upload as well. And it was in there the last housekeeping

4 session, so I assume it's still there. I have no objection. However I

5 may come back and revisit the issue and ask for something else to be

6 added, because in the meantime, a map has been added to the back from the

7 book, which I was unaware of. I have no objection to the map coming in,

8 but there may be other maps that I asked to be loaded in as well. But at

9 this point -- [Overlapping speakers] ...

10 JUDGE ORIE: [Overlapping speakers] ... no objections to the

11 portions uploaded, but you reserve your right it ask for additional

12 portions to be admitted.

13 MR. MISETIC: Correct. Yes, Mr. President.

14 JUDGE ORIE: Then you have you an opportunity until Thursday

15 morning to verify whether everything is the same as it was before but on

16 the basis of what you verified as being uploaded the last time.

17 Mr. Registrar, I take it that nothing has changed since then.

18 I see Mr. Registrar nodding no. Then P482 is admitted into

19 evidence.

20 I now move to the -- if I could call it the Lausic list of mainly

21 bar-tabled documents, a list that starts at P2210.

22 A general request -- or general question, Mr. Hedaraly. It was

23 announced that the Prosecution would seek to have admitted to the 65 ter

24 list many, many documents of this list. I -- it's -- I don't remember

25 that I have seen such an application.

Page 16680

1 MR. HEDARALY: I believe that you haven't seen it, Your Honour,

2 because it has not been filed yet. It should be filed shortly.

3 Hopefully but Thursday of this week, or Friday.

4 JUDGE ORIE: Yes. Shall we say not later than this week because

5 otherwise --

6 MR. HEDARALY: Absolutely, Your Honour.

7 JUDGE ORIE: Hopefully, and shortly, and to be filed still this

8 week.

9 Then, therefore, I will pay attention only at this moment to

10 those bar table submissions where there appear to be no objections. I

11 will go through them one by one.

12 P2221. I'll always make a short pause, in order to give an

13 opportunity to object. P2221 is admitted into evidence.

14 P2222, is admitted into evidence.

15 I'm closely watching you.

16 P2225, is admitted into evidence.

17 P2226, is admitted into evidence.

18 P2234, is admitted into evidence.

19 P2235, is admitted into evidence.

20 P2236, is admitted into evidence.

21 P2238, up to and including P2240, is admitted into evidence.

22 I now come to P2241, where, during the last housekeeping session,

23 it was announced that a shorter version, the earlier version being

24 518 pages, but a shorter version would be uploaded, and I was informed by

25 Mr. Registrar that that was done by now. That's the ...

Page 16681

1 Mr. Hedaraly, could you confirm that.

2 MR. HEDARALY: I believe that's right, Your Honour.

3 JUDGE ORIE: Mr. Registrar, you -- there was a shorter version

4 uploaded, P2241?

5 [Trial Chamber and registrar confer]

6 JUDGE ORIE: The number of pages is down to 74, as I understand.

7 Is there any objection against the now uploaded 74 pages of --

8 consisting of -- which compose P2241, which are documents received from

9 the Republic of Croatia, in response to a request for assistance?

10 MR. MISETIC: No, Your Honour.

11 JUDGE ORIE: No objections by other Defence teams. Then P2241 is

12 admitted into evidence.

13 P2246 is admitted into evidence.

14 P2248, up to and including P2253. No objections; therefore, is

15 admitted into evidence.

16 P2260, up to -- oh, no, and P2261, in the absence of any

17 objections --

18 Mr. Misetic.

19 MR. MISETIC: Mr. President, I have no objections; however, I do

20 wish to note that we also have no objection to the daily reports, I

21 believe we are in a range now of 2251 to 2259.

22 JUDGE ORIE: Yes. But let me just see.

23 MR. MISETIC: If they're not 65 ter exhibits, which I can't

24 imagine that they are not --

25 JUDGE ORIE: Let me just check for a second.

Page 16682

1 Earlier I mentioned 2248 up to and including 2253, that covers

2 all the numbers in between.

3 Then the ones that follow; that is, 2254, up to and including

4 2259, still have to be added to the 65 ter list.

5 MR. MISETIC: On behalf the Gotovina Defence we have no objection

6 to those being added to the 65 ter list.

7 JUDGE ORIE: Yes. Even not knowing the reasons why they were

8 added so late. Are the other parties also already in a position to

9 express their views?

10 MR. CAYLEY: Your Honour, we'd like to see what the Prosecution

11 has to say about the reason for the late application to the 65 ter list,

12 please. Thank you.

13 JUDGE ORIE: Yes. So then it is on the record that are there are

14 no objections against adding to the 65 ter list of these documents.

15 I think I then dealt with 2260 and 2261. I said in the absence

16 of any objections, and I intended to continue to say that they were

17 admitted into evidence, and that's I have done now.

18 P2263 and P2264. I hear of no objections; therefore, admitted

19 into evidence.

20 P2276, admitted into evidence.

21 P2282 and P2283, are admitted into evidence.

22 P2288. Again, no objections; therefore, admitted into evidence.

23 P2301 and P2302, are admitted into evidence.

24 P2311, is admitted into evidence.

25 Then we have a few other issues.

Page 16683

1 We have Cermak's fifth bar table submissions, numbers

2 provisionally assigned range from D1332 to 1342, the latter number

3 included.

4 Any objections, Mr. Hedaraly.

5 MR. HEDARALY: No, Your Honour.

6 JUDGE ORIE: D ...

7 [Trial Chamber and legal officer confer]

8 JUDGE ORIE: I misspoke, Mr. Hedaraly, because it ranges from

9 D1332 to D1343, instead of 42.

10 Would that change your position?

11 MR. HEDARALY: I will be frank. I was going fifth Cermak bar

12 table motion. So there are no objections.

13 JUDGE ORIE: Then D1332 up to and including D1343 are admitted

14 into evidence.

15 Then I come to the Gotovina Defence bar table submissions, and

16 I'll deal with them by witness to which they are related.

17 The first being Alun Roberts. But before further considering

18 this, we see document descriptions on the list, we see, however, and

19 that's true for all three series of bar table submissions, no entry as to

20 whether there are specific portions or specific elements in this

21 documentary evidence which we should focus on or pay special attention

22 to.

23 That is because the Chamber invited always to point at certain

24 portions or certain elements which would deserve our specific attention

25 so that we could pay less attention to other matters.

Page 16684

1 Mr. Misetic, is this because you consider everything relevant or

2 everything equally relevant or ...

3 MR. MISETIC: I think, Mr. President, we obviously don't consider

4 everything relevant but we try to title the documents according to what

5 we think the relevance might be. However, we can review them again and

6 try to focus it more if the chamber wishes.

7 JUDGE ORIE: Well, if you would --

8 MR. MISETIC: By topic, perhaps.

9 JUDGE ORIE: [Previous translation continues] ... please Check

10 that. For example, by topic, or if it is a long report, the Mazowiecki

11 report, for example, whether we would have to go through the whole of the

12 document, or whether you would, in relation to the testimony of this

13 witness, would ask us to pay specific attention. It is a matter which

14 takes you some effort.

15 MR. MISETIC: Yes.

16 JUDGE ORIE: And which will save the Chamber considerable time if

17 we are fully informed. Therefore, I'd like to keep on the record that we

18 verify at a later stage, could we say within a week that we hear from

19 you --

20 MR. MISETIC: Yes, Mr. President.

21 JUDGE ORIE: [Previous translation continues] ... if there are

22 any specific portions. And I have difficulties in -- in accepting that

23 for all of the documents, of course, shorter documents may be perfectly

24 clear, that for all of the documents, the description as such would give

25 sufficient guidance for our focus on the subject.

Page 16685

1 MR. MISETIC: That's fine, Mr. President. If I may just ask one

2 thing of the Registrar. We have noted that we made an error and D1355

3 [Overlapping speakers] ...

4 JUDGE ORIE: Yes, because that is already P694, isn't it?

5 MR. MISETIC: Yes, Mr. President.

6 JUDGE ORIE: Yes, I had that on my list as -- then we do

7 understand that there are no objections from the Prosecution on this

8 range which would be D1344 up till 1345; then number 1355 to be vacated

9 being a duplicate of P694; and then the series continue from 1356 up to

10 and including 1377. I'm exclusively dealing at this moment with the

11 Roberts.

12 MR. HEDARALY: We don't have objections to the underlying

13 documents. There may be issues with the relevant descriptions, but that

14 is something that we can talk to Counsel about.

15 JUDGE ORIE: Yes. Although, I think the instruction of the

16 Chamber was that the description should be shown to the other party first

17 so that they could comment on it, and that we did not have to -- when did

18 you ...

19 [Prosecution counsel confer]

20 JUDGE ORIE: When did you receive the descriptions, Mr. Hedaraly?

21 MR. HEDARALY: I must say, Your Honour, I don't have the date

22 from the top of my head. Maybe counsel can assist me. I think it was

23 last week, early last week. But that is from memory. Could be longer.

24 MR. MISETIC: Are we talking about the existing descriptions, or

25 the ones I'm yet to do?

Page 16686

1 JUDGE ORIE: The ones as I find them now on bar table submissions

2 of documents related to Alun Roberts. We received a --

3 MR. MISETIC: The same day I sent to you, Mr. President, it was

4 received by the Prosecution, and Mr. Waespi indicated they had no

5 objection.

6 JUDGE ORIE: Yes. Because we also received the information there

7 was no objection. But it is now ...

8 MR. HEDARALY: I'm sorry, if it -- I think it's my mistake.

9 JUDGE ORIE: [Overlapping speakers] ... no, no, it's clear. No

10 objections against admission but possibly against description.

11 MR. HEDARALY: Exactly. Thank you.

12 JUDGE ORIE: No, I have understood you well.

13 First of all, the -- the Chamber invited the parties to agree on

14 the description in order to avoid unnecessary further debates but, of

15 course, the descriptions as such are not in evidence. Therefore, D1344

16 up to and including 1354, and P -- D1356 up to and including 1377 are

17 admitted into evidence. And, Mr. Hedaraly, the Chamber, where an

18 opportunity was there to criticise the description which has not been

19 used only in very urgent and important matters, the Chamber would allow

20 you to come back to the description and then we'll see whether there's is

21 any need to change them. Of course, if the parties agree on a change,

22 then the Chamber will accept that as well.

23 Next series, Mate Lausic, range from D1378 to D1391. We were

24 informed that there were no objections against admission.

25 Mr. Hedaraly, do I have to ask whether there are any possible

Page 16687

1 objections against the description?

2 MR. HEDARALY: No, Your Honour.

3 JUDGE ORIE: Then D1378 up to and including D1391 are admitted

4 into evidence.

5 Then the Puhovski Gotovina bar table exhibits, ranging from D1392

6 to D1424. The Chamber was informed that there were would be no

7 objections against those.

8 MR. HEDARALY: That's correct as well, Your Honour.

9 JUDGE ORIE: Now, I'm -- we know that we still have to hear the

10 Puhovski submissions by Ms. Higgins.

11 Mr. Cayley, would that at this moment be a bar to deciding on

12 these?

13 MR. CAYLEY: Yes, I think it would, Your Honour. I think the

14 Trial Chamber respectfully should hear from Ms. Higgins before you decide

15 on an admission of these document, yes.

16 JUDGE ORIE: Yes. Then it's on the record that the Prosecution

17 does not object to admission.

18 Could I hear from Mr. Mikulicic.

19 MR. MIKULICIC: The very same position, Your Honour. I'm not

20 objecting.

21 JUDGE ORIE: Yes.

22 MR. CAYLEY: Your Honour, Mr. Misetic thinks that we're talking

23 about the documents offered by the Gotovina Defence, but I'm assuming

24 that we're talking about what you mentioned earlier.

25 JUDGE ORIE: We're talking about the documents -- I even read it,

Page 16688

1 Puhovski Gotovina bar-tabled exhibits.

2 MR. CAYLEY: No. We're not objecting to those documents,

3 Your Honour.

4 JUDGE ORIE: Ranging from D1392 to D1424 are admitted into

5 evidence.

6 Then I move to the maps.

7 On the 7th of November last year, the parties have filed at joint

8 submission on the division of Croatian municipalities, and the map

9 attached to that was called Annex A and was admitted as Exhibit P1282.

10 Now the Prosecution has asked that the map binder be admitted

11 into evidence. And I think, Mr. Misetic, you wanted to check what maps

12 were already admitted before you would respond.

13 Could you give us your response now.

14 MR. MISETIC: In all honesty I cannot, Mr. President. I need a

15 minute to research that issue.

16 JUDGE ORIE: Well, you get that minute.

17 MR. MISETIC: Thank you.

18 JUDGE ORIE: Then I move on to the next item.

19 On the 16th of January, in our decision on the admission of

20 statements of two witnesses and associated documents pursuant to Rule 92

21 quater, the Chamber admitted, among other documents, UNCIVPOL incident

22 reports. And I give the numbers: S2-95-484, which was 65 ter 4131; and

23 S2-95-498, which was 65 ter 7029. These two documents, however, were

24 already in evidence as P235 and P239, and they were admitted through

25 Witness Elleby.

Page 16689

1 I think we have not received a final list with numbers.

2 MR. HEDARALY: We are working with the Registrar to resolve all

3 the small technical issues in 92 bis and quater statements and exhibits

4 that are in evidence.

5 JUDGE ORIE: We put this on the record so as to make clear that

6 there's no need to assign new numbers to the aforementioned two

7 documents.

8 Next issue is the expert report by Professor French. I think the

9 parties agree that Mr. French qualifies as a witness under Rule 94 bis,

10 and the Chamber understood that the Defence has indicated that it did not

11 wish to cross-examined witness.

12 MR. HEDARALY: I'm sorry, Your Honour. I think you said

13 qualified as a witness; I think you meant as an expert.

14 JUDGE ORIE: As an expert, yes.

15 MR. KEHOE: That's correct.

16 JUDGE ORIE: Therefore, nothing as far as I can see at this

17 moment further opposes admission into evidence.

18 Mr. Registrar, the expert report of Professor French.

19 Mr. Hedaraly, could you help us out as to how to find it? I take

20 it that it has not been assigned -- it is not a 65 ter number because it

21 is attached to a motion.

22 MR. HEDARALY: It's not, but I think that we have uploaded it. I

23 will find the right reference. If not, we will do so shortly so it can

24 be admitted.

25 JUDGE ORIE: Yes. The report of Professor French to which still

Page 16690

1 an exhibit number should be assigned is admitted into evidence.

2 MR. HEDARALY: I'm sorry, Your Honour. I do have a number.

3 JUDGE ORIE: Yes.

4 MR. HEDARALY: It is 7037. 65 ter 7037.

5 JUDGE ORIE: Mr. Registrar, that would become number ...

6 THE REGISTRAR: Your Honours, that will become Exhibit P2353.

7 JUDGE ORIE: P2353 is admitted into evidence.

8 The Chamber invited the parties to agree on an explanation how to

9 understand grid references and to report to the Chamber if no agreement

10 would be reached. The Chamber would like to receive an update.

11 MR. KEHOE: [Overlapping speakers] ... Yeah, we gave report. We

12 have disagreement with the methodology employed by the Office of the

13 Prosecutor. We will submit something in writing on the methodology that

14 employed using X, Y, Z grid for the coordinates. The Prosecution has

15 used a longitude/latitude, or longitude meridian method that doesn't

16 translate exactly, so it accounts for some errors, but I do believe that

17 we have been going back and forth, and Mr. Russo - and correct me if I'm

18 wrong, Mr. Hedaraly - but I just think we parted company on the end

19 result.

20 MR. HEDARALY: I think I can definitely confirm that the

21 Prosecution and the Defence have parted ways. I think at this stage

22 perhaps it is better to just have submissions on both sides, and the

23 Chamber can decide.

24 JUDGE ORIE: Yes. Then the Chamber would like to receive written

25 submissions on the matter because it is not something to be easily taken

Page 16691

1 from the transcript of a hearing.

2 By the end of this week, since you have quarrelled about it quite

3 a bit, you must certainly be able to formulate your position.

4 MR. KEHOE: Mr. President, if I could have just to the beginning

5 of the week. I have some other matters I have take care of, if I could

6 do that. It's a -- it may be, and it may be helpful for us to do a draft

7 response and give it to Mr. Russo. Frankly, I think we're trying to get

8 this right, and I don't think we're that too far apart. It does become

9 more difficult when you move to other targets when you use different

10 methodology. Be that as it may, I think it might be helpful if we

11 present it in writing for what it is, give it to the Prosecution, and

12 see --

13 MR. HEDARALY: We would, of course, welcome that, and if that can

14 resolve the matter, we are more than happy to cooperate.

15 JUDGE ORIE: Yes. Even a joint submission on where you do agree

16 and where you do not agree and what the position of one party is, and

17 what the position of the other party is on one document, would certainly

18 find no objections as far as the Chamber is concerned. At the same time,

19 of course, parties are free to submit what they wish to submit. But it

20 certainly will assist if you exchange already your views on the matter

21 prior to final -- making final submissions.

22 MR. HEDARALY: I will say, Mr. President, we have been trying to

23 go back and forth, and this is not something we haven't been working on.

24 I know that obviously with the witness we that we had this week, and both

25 Mr. Russo and I were detailed off doing other things, but we have had

Page 16692

1 information back and forth trying to resolve it.

2 JUDGE ORIE: The Chamber expects submissions not later than by

3 Tuesday next week.

4 Then --

5 MR. HEDARALY: I'm sorry, Your Honour.

6 Would that be -- I mean my understanding now is that the Gotovina

7 Defence wants to file a submission. They will first give us a draft. So

8 if we disagree, should we also file the same day or wait for the filing

9 and then respond? It's unclear me, just so I know what we have to do.

10 JUDGE ORIE: The Chamber encourages exchanges of view which would

11 allow, if there's no way of finding a joint submission on the matter,

12 even if there is some disagreement, that the parties would have filed

13 their views on the matter not later than next Tuesday.

14 MR. KEHOE: If I just -- can I ask, Mr. President, can I have

15 till Tuesday to give my response to the Prosecution, and then Thursday if

16 they disagree. I mean, just as a little bit of lead time for them just

17 to analyse what we have in writing. I just have some other things going

18 on unfortunately.

19 JUDGE ORIE: I take it, as a matter of fact, that the chance that

20 we would extensively deal with grid references with the next witnesses to

21 come is --

22 MR. HEDARALY: It is unlikely, Your Honour. I mean, and frankly,

23 the issue is we provided our methodology to the Defence. We have not got

24 theirs yet, so that's why we can't file anything now even if we wanted.

25 That's why, if we receive something from Mr. Kehoe as soon as possible,

Page 16693

1 we will look at it and then we can see if we can meet somewhere.

2 MR. KEHOE: We have explained to Mr. Russo exactly what

3 methodology we're using, so [Overlapping speakers] ... [Microphone not

4 activated].

5 THE INTERPRETER: Could the speakers that all the microphones not

6 being used are switched off in order to ensure an accurate record. Thank

7 you.

8 MR. KEHOE: We will endeavour to try to get it right.

9 JUDGE ORIE: It's not a matter which if you would need one or two

10 days more, and if our expectation that grid references are not core

11 issues with the next witnesses to come, then most important is that the

12 Chamber receives clear explanation of the positions of the parties. And

13 if you would need until Thursday, Mr. Kehoe, that would not meet any

14 great problems.

15 MR. KEHOE: Thank you.

16 MR. MISETIC: Mr. President, we're having a hard time finding the

17 discussion about the map binder issue. Is there any reference that we

18 can have?

19 JUDGE ORIE: I can see whether I can ...

20 I have no date for you, but sometimes if you would seek for ...

21 [Trial Chamber and legal officer confer]

22 MR. HEDARALY: It's on the 22nd of January at one of the

23 housekeeping sessions.

24 JUDGE ORIE: Yes.

25 MR. HEDARALY: 14871, in that page essentially.

Page 16694

1 JUDGE ORIE: Yes, I can confirm that it was at a housekeeping

2 session, and that was the 22nd of January.

3 Then there was some unclarity about the lifting of the

4 confidential character of the documents pertaining to Witnesses 8, 9, 19,

5 30, 32, 36, and 45. We received an indication that there was no -- there

6 was no objection against lifting the -- that no protective measures are

7 needed and, therefore, the under seal status of P631, up until and

8 including P637 is hereby lifted.

9 Still, an exhibit number has been assigned to Prosecution

10 document 65 ter 2552. It's an interview with Mr. Cermak with the Globus,

11 published in Politika, dated 30th of October, 1997. At the time, we were

12 informed there would be no objections. Is that still the case, as far as

13 all three Defence teams are concerned?

14 [Trial Chamber confers]

15 JUDGE ORIE: Mr. Registrar.

16 THE REGISTRAR: Your Honours, that will become Exhibit P2354.

17 JUDGE ORIE: P2354 is admitted into evidence.

18 Mr. Hedaraly.

19 MR. HEDARALY: On that same score in that same bar table there

20 was also 65 ter 3530. I'm aware that that was also tendered as an

21 attachment to the Prosecution's motion to have the interviews, the

22 suspect interviews of the accused Markac and Cermak to be admitted into

23 evidence, but since it was part of the same bar table motion and there

24 were no objections at the time if we can also have a number assigned to

25 that one at the moment.

Page 16695

1 JUDGE ORIE: Yes. That makes mainly sense if we could take a

2 decision on the matter. And the previous one, I looked at it again late

3 this morning, so in order to have it fresh on my mind. I haven't done

4 the same with the other one.

5 MR. HEDARALY: Neither have I, Your Honour.

6 JUDGE ORIE: So that we could ask Mr. Registrar to have it marked

7 for identification, so at least we will not forget about it.

8 MR. HEDARALY: Thank you.

9 JUDGE ORIE: Mr. Registrar.

10 THE REGISTRAR: Your Honours, that will become Exhibit P2355,

11 marked for identification.

12 JUDGE ORIE: Thank you, Mr. Registrar.

13 I think I dealt with MFIs and related subjects.

14 Then I'd like to move on to the second item on the agenda; that

15 is, a short statement which I'd like to read.

16 The Chamber would like to make a short statement clarifying the

17 procedure with regard to changing exhibits and translations in e-court.

18 If a party would like to make a change to a document that has

19 been marked for identification or is admitted into evidence, a request to

20 this effect should be done on the record. The Chamber will then consider

21 the request, and, if granted, instruct the Registry to make the requested

22 change.

23 In the case of replacing a draft translation by a final one and

24 if none of the parties oppose the new version of the translation, the

25 Chamber has authorised the Registry to make such changes. The Registry

Page 16696

1 should inform the parties and the Chamber staff through e-mail of the

2 change made.

3 This concludes the Chamber's statement.

4 Mr. Hedaraly.

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

6 Just a few housekeeping matters while on the subject. One of

7 them falls right within the guidance given with respect to P450. The

8 wrong range of ERN was uploaded into e-court. The new one is ready.

9 It's a matter of changing it. That was done in October of 2008. We got

10 a response right away from the Cermak saying there were no objections.

11 We haven't heard from the other parties. There were no objection to the

12 exhibit. It was just the wrong pages, the wrong document that was

13 attached to it. So if we could have that admitted on the record.

14 JUDGE ORIE: Yes. No objections by the Cermak; no objections by

15 any of the other Defence teams.

16 Then the Chamber grants the request to upload the right ERN

17 numbers. And invites the Registry to make the requested change.

18 MR. HEDARALY: On this same issue --

19 MR. KEHOE: [Microphone not activated]

20 MR. KUZMANOVIC: Your Honour, I just happened to be out of the

21 courtroom just for a moment when the issue of the bar table submission

22 came up regarding statements.

23 As the court will recall there has been a reduction in the amount

24 of pages that the Prosecution is referring to, and I have not had a

25 chance to finish looking at what their reduction is, so that's why there

Page 16697

1 hasn't been a response yet. That reduction or notification came on, I

2 think, Friday.

3 JUDGE ORIE: We will come to that at a later stage. It's one of

4 the items on the agenda which we still have to deal with.

5 MR. HEDARALY: Can I -- one more housekeeping matter. There were

6 two documents shown during the examination of Mr. -- I think it is a

7 protected witness. I don't have the number, so I won't -- off the top of

8 my head. But I have the transcript references. It was 65 ter 5284,

9 which was addressed at transcript reference 9278, line 17 to 9279, line

10 18. And there was also 65 ter 5028 at transcript reference 8314, line 23

11 to transcript reference 89317, line 14. They were shown to the witness.

12 I have this information from Mr. Margetts. For some reason they were not

13 MFI, so if we can have them assign a number and, of course, we'll let

14 Defence see if there is any objection, just so that we don't lose track

15 of it. Thank you.

16 JUDGE ORIE: I suggest that the only thing we do at this moment

17 to assign exhibit numbers to these 65 ter numbers. We'll then hear from

18 the Defence. The Chamber is unable to immediately check so many

19 transcript pages. We can look at only one at a time. And I take it that

20 the Defence would need time as well to consider whether there are any

21 objections.

22 Mr. Registrar, 65 ter 5284.

23 THE REGISTRAR: Your Honours, that will become Exhibit P2356,

24 marked for identification.

25 JUDGE ORIE: 65 ter 5028.

Page 16698

1 THE REGISTRAR: Your Honours, that becomes Exhibit P2357, also

2 marked for identification.

3 JUDGE ORIE: Yes. These were the two only ones, yes.

4 MR. HEDARALY: There's one last housekeeping issue that I have.

5 Is regarding P881 and P887. Apparently they are the same

6 document. The reason they got assigned two different exhibit numbers was

7 it was a 92 ter submission, then called up in e-court in court with

8 another 65 ter number. So P881 should be the one that is kept, and we

9 can vacate P887.

10 Thank you.

11 JUDGE ORIE: Mr. Misetic, you wanted to address this matter or

12 another matter?

13 MR. MISETIC: It is a matter that has already come up because

14 we're working on the court map binders, and we missed that there is a

15 problem with P450. So I will wait my turn until you have resolved this

16 issue.

17 JUDGE ORIE: Yes. Then, first, Mr. Registrar, P887 should be

18 vacated after you have verified that it's the same document as P881.

19 Mr. Misetic.

20 MR. MISETIC: Yes, Mr. President. We note that P450, the

21 original is 9 pages, and the English translation is 124 pages. So there

22 is something not accurate.

23 JUDGE ORIE: Yes. And that could not be explained by prolixity

24 in the English language, would it?

25 MR. HEDARALY: I would have to check, but that may be one of the

Page 16699

1 issues why we had to upload the right ERN range which hadn't been done

2 until -- it had to be confirmed by the Chamber on the record. But I have

3 to confirm that that could very well be the exact problem that we had.

4 JUDGE ORIE: Could we hear from you soon, and if you would give

5 prior announcement as to what the suggested action would be, to be sent

6 by e-mail to all Defence teams and the Chamber staff, that would

7 certainly allow to us deal with it efficiently during the next ...

8 MR. MISETIC: Mr. President, just while on that exhibit, we note

9 that there may be some translation issues, so if we could just ask the

10 Prosecution, and whatever final version is going to be that it be checked

11 to make sure that the translation of the portion they wish to tender is

12 accurate, obviously.

13 JUDGE ORIE: Yes. But apparently have you some thoughts about

14 translation which I take it you will share with the Prosecution.

15 MR. MISETIC: Yes, Mr. President.

16 JUDGE ORIE: Yes, Mr. Kehoe.

17 MR. KEHOE: Yesterday I had a document -- this in the spirit of

18 getting rid of many MFIs as we can to short order. There was a document

19 that I put on sanction that was given a MFI number. It has been now

20 uploaded as 1D00-0812. It had been given an MFI number yesterday, D1429.

21 Mr. Russo had no objection to the admission of the document, so I would

22 just -- [Overlapping speakers] ...

23 JUDGE ORIE: Yes, yesterday it was not uploaded yet.

24 MR. KEHOE: Yes, it is uploaded now.

25 JUDGE ORIE: It is up loaded now. D1429 in the absence of any --

Page 16700

1 MR. HEDARALY: Is that on the record? [Overlapping speakers] ...

2 I'm just asking because I have checked with Mr. Russo, so if it's on the

3 record, then I will take that it's fine.

4 JUDGE ORIE: Let's see. Let's see. That is one of the

5 advantages of good electronic systems, that we can check that

6 immediately.

7 [Trial Chamber and registrar confer]

8 JUDGE ORIE: Yes, Mr. Registrar -- no, let's first deal with the

9 matter at hand.

10 One --

11 MR. HEDARALY: I have yesterday's transcript, the draft

12 transcript in front of me at page 17, and Mr. Kehoe said at line -- page

13 17 line 13 if we could MFI it at this point, I will go get a doc ID

14 number, we appreciate that, and offer it into evidence. It says

15 objection, and it is very likely that Mr. Russo said no objection, so

16 based on that, it's fine.

17 JUDGE ORIE: Yes. You have a possibility to revisit the matter

18 within 48 hours if it would turn out to be incorrect.

19 D1429 is admitted into evidence.

20 I further inform you, Mr. Hedaraly, that D88 -- P881 and P887 are

21 not the same documents. There are handwritten additions to P881, which

22 do not appear on P887. So, therefore, although the substance seems to

23 the same, it's not the same document. Apart from that, there is

24 apparently some stamp about the authenticity of the document or where it

25 was taken from on P881 which does not appear on P887.

Page 16728

1 JUDGE ORIE: Yes, I don't want to make it -- I mean if you say --

2 I mean we want to give a bit of extra time because the fundamentals

3 remain the same and, of course, the reduced size of the statements may

4 ask for some adaptation.

5 Monday by noon. Would that be -- so that it would at least give

6 you some additional time over the weekend.

7 MR. MISETIC: Yes.

8 JUDGE ORIE: If that's what you're seeking, then, of course, if

9 it would be filed on Friday, then mostly we would look at it during the

10 weekend but ...

11 MR. MISETIC: We will endeavour to get it filed by Friday;

12 however, I would ask until Monday just because I have the witness

13 upcoming, and I'm not sure in terms of my time how much time I have. But

14 be we will endeavour to get it filed on Friday.

15 JUDGE ORIE: The endeavour is appreciated, and if it would be

16 Monday by noon, then the Chamber would not for that reason alone,

17 consider the response to be late. Any of the other Defence teams?

18 Because I would ask Mr. Misetic, but I take it that the other Defence

19 teams would --

20 MR. KAY: We don't object to that amount of time being given,

21 Your Honour. It is something that we could deal with fairly quickly.

22 Have I been indisposed by illness for the last couple of days.

23 JUDGE ORIE: We can still hear in from your voice, Mr. Kay.

24 MR. KAY: Yes, I won't say anymore then.

25 MR. MIKULICIC: It's the same position, Your Honour.

Page 16729

1 JUDGE ORIE: Yes. So, therefore, the Chamber hopes to receive

2 your submissions by Friday, and if not, to not receive it not any later

3 than by Monday noon.

4 Yes, I one additional matter. Is it true that we were informed

5 that the OTP wanted to tender, or have we dealt with that already, 65 ter

6 0284 and 65 ter 5028, both?

7 MR. HEDARALY: Can I just have some guidance on what those two

8 are?

9 JUDGE ORIE: It should be an omission to tender documents which

10 were used in relation with witness Kardum.

11 MR. HEDARALY: Yes, that was dealt with earlier, Your Honour.

12 JUDGE ORIE: [Overlapping speakers] ... yes, I now remember

13 numbers were assigned; it was MFIed, but the Chamber said that since it

14 appears on a totally different part of my list, I made this mistake.

15 Mr. Mikulicic, the 23rd of February report of

16 Professor Folnegovic, I have that -- it has been officially filed with

17 the annexes because I have a copy in my hands at this moment which seems

18 to be a courtesy copy sent to the Chamber's legal staff.

19 MR. MIKULICIC: No, Your Honour. It has not been officially

20 filed. This is a -- only a response to your request from yesterday

21 afternoon.

22 JUDGE ORIE: Yes. I have a cover letter which is rather brief

23 and addressed by his first name to the leader of the Trial Chamber staff

24 support which doesn't say any more than that you have appended the

25 documents on which Professor Folnegovic Smalc has based her conclusions

Page 16730

1 but attached to it is also a letter or a report dated the 23rd which is

2 not mentioned in the letter.

3 May I take it that you want to file the letter dated the 23rd of

4 February, in which Professor Folnegovic Smalc addresses you and explains

5 what of her documents were she had at the beginning, what six documents

6 she further consulted when she -- what documents were used in preparing

7 the second opinion, and added are two paragraphs in which you draw

8 specific attention to certain aspects of it, and that's the letter where

9 you said there were some incorrect translations.

10 May I take it that it is this letter and the annexes that you

11 want to bring to our attention. You're then invited to file them so that

12 they are properly put on the record.

13 MR. MIKULICIC: We will do so, Your Honour. But just -- just

14 have in mind that there was an urgent matter because your ruling was only

15 yesterday afternoon. In the meantime we have a huge problem in the

16 morning with an electrical system and the computer system, so it was the

17 easiest way to do it, but of course we will file it properly.

18 JUDGE ORIE: Yes, thank you, Mr. Mikulicic. This was not just

19 comment just to try to get everything in such a way on the record, that

20 those who might want to consult the record at a later stage are fully

21 informed.

22 Let me confer with my colleagues for a second.

23 MR. MISETIC: Mr. President, I have two issues, just so you're

24 aware of it.

25 JUDGE ORIE: Yes, I'm aware of it.

Page 16731

1 [Trial Chamber confers]

2 JUDGE ORIE: Mr. Misetic.

3 MR. MISETIC: Mr. President, I have two issues. One is to

4 respond to your inquiry earlier in the day about the maps, the binder. I

5 have reviewed them. In principle I don't have an objection. However,

6 some of the maps we think lack relevance. Others of them have errors in

7 them, and I think if the Prosecution wants to admit them, we'll have to

8 discuss with the Prosecution because there have been -- some of theme are

9 created by the Prosecution, and I think, quite frankly, there are some

10 mistakes in them that need to be corrected.

11 The third issue is almost none of them are uploaded into e-court

12 or have a 65 ter number, so they are as far as I know not on the 65 ter

13 list.

14 MR. HEDARALY: Which is why we had raised the issue in the last

15 housekeeping session, if I remember correctly.

16 JUDGE ORIE: Yes.

17 MR. MISETIC: I looked at the transcript. I didn't see a motion

18 to add them.

19 But in any event I would be happy to talk to the Prosecution and

20 see if there is agreement that can be reached on these.

21 JUDGE ORIE: If you could reach agreement on this, of course, it

22 may not be a secret that the Chamber looked at these maps quite often.

23 Therefore, we would be assisted by any comments on inaccuracy of these

24 maps.

25 MR. MISETIC: Yes.

Page 16732

1 JUDGE ORIE: And even they're not on the 65 ter list, I can

2 imagine that the parties can agree that it is better for the Chamber

3 rather than to draw and their own maps, to use maps that are not only in

4 existence but also verified as to their accuracy, and to the extent

5 needed, corrected.

6 MR. MISETIC: Yes.

7 Mr. President, the second issue is, I rise because of a filing by

8 the Prosecution today.

9 There is a motion to add two documents summarizing investigative

10 steps taken by civilian authorities to the Prosecution exhibit list and

11 to admit these documents into evidence.

12 I don't know if the Chamber has had a chance to review it. It is

13 101 pages involving spreadsheets of what probably involve hundreds, if

14 not more than a thousand, underlying supporting materials.

15 We are probably about a week away from the close of the

16 Prosecution's case. It is simply, in terms of our ability at this point

17 to analyse or provide any review of the Prosecution's submission is for

18 all intents and purposes at this point, impossible. So if the

19 Prosecution has -- I'm sorry, if the Trial Chamber could give us some

20 guidance the next time we meet on how you wish to deal with this. But

21 this is not a simple exercise for us, and to do it now basically

22 precludes us from reviewing. You know, in theory we would have 14 days

23 to try to do something with this. Obviously that is not going to happen

24 now, so any guidance from the Chamber on how to approach this, because

25 I'm afraid that it may be the Chamber itself that is going to have to

Page 16733

1 make -- make heads or tails of this.

2 Thank you.

3 JUDGE ORIE: Mr. Hedaraly, any comments on --

4 MR. HEDARALY: [Overlapping speakers] ... Just very briefly. I'm

5 not completely familiar with it; I know only a little bit. But I think

6 the motion does describe what was done. Some of this was actually

7 related to other issues about what we had about D511 and D568, if the

8 Chamber remembers, on which a decision is it pending still. I would

9 invite the Chamber to look at a carefully, and if the Chamber wants us to

10 do anything in response, we will obviously -- obviously respond to that

11 invitation.

12 MR. MISETIC: Mr. President, if I can just add two things that I

13 forgot to add. One is that the filed copy of the spreadsheets is

14 virtually illegible at this point, so we would need a different

15 disclosure from the Prosecution.

16 The second is then there are -- there are exhibits attached which

17 then try to tie the documents to some of the killing incidents. I

18 haven't had a chance to now even look to see whether killing incidents

19 that have been remanded back to the Trial Chamber by the Appeals Chamber

20 are included or not. But in any event the whole issue of the prejudice

21 to the Defence on the killing incidents in the first place would in

22 addition now be compounded by the fact that we're now being given

23 underlying documentation that's being tied to killing incidents less than

24 a week or roughly a week before the close of the Prosecution case.

25 So -- and I have already stated that I have enough trouble filing

Page 16734

1 something by Friday. The chances of me being able to deal with this at

2 any time before next week are nil.

3 Thank you.

4 MR. HEDARALY: I have just got some supplemental information int

5 he meantime. And it says that the Defence had the bulk of this material

6 since September when Witnesses Kardum testified.

7 MR. MISETIC: Mr. President, I think you gather from the reaction

8 here that, you know, the fact that they disclosed 2.000 pages of paper to

9 us certainly doesn't help us, nor -- the fundamental point is that

10 they're not moving that paper into evidence; they've now created

11 spreadsheets and are making claims on the basis of underlying paper,

12 which of course --

13 MR. HEDARALY: Which the Defence has done as well from what I

14 understand, and that's -- [Overlapping speakers] ...

15 MR. MISETIC: [Overlapping speakers] ... and disclosed in the

16 middle of the trail, giving the Prosecution plenty of time to review our

17 spreadsheets.

18 JUDGE ORIE: [Overlapping speakers] ... we can easily establish

19 two things before 7.00. Is that the first, that none of are doctors.

20 And second that the Chamber will not -- not even having seen the

21 submission, not even knowing whether Mr. Hedaraly referred to disclosed

22 documents or documents already in evidence, the Chamber will certainly

23 not decide the matter before 7.00.

24 The Chamber will try to inform the parties as soon as possible,

25 and we'll try to do it tomorrow morning, about how we proceed, and that's

Page 16735

1 of course in relation to several motions, how we will proceed on

2 Thursday. Whether we will hear the testimony of the witness scheduled

3 for Thursday. If not, what our steps will be. We need some time to

4 further consider the submissions that were made today on the matter. The

5 Chamber will certainly not be able to issue written full reason decisions

6 on the matter. The Chamber will decide the matter and will informally

7 tell the parties what they can expect for Thursday.

8 Is there any other matter at this moment?

9 MR. KAY: As the Trial Chamber finds difficulty responding to as

10 well to matters, I looked at the motion filed this afternoon with alarm

11 and have set up a meeting tomorrow with my team and asked for ideas how

12 on earth we deal with it.

13 I think the Court will understand when they look at the document.

14 JUDGE ORIE: Yes, we'll have a look at it. Again, the only thing

15 I know is now that it is apparently 100 pages or something like that, and

16 there are spreadsheets in it, so we will have a lock at it.

17 We adjourn, and we will resume, as matters stand now, resume on

18 Thursday, the 26th of February, 9.00, in Courtroom I.

19 --- Whereupon the hearing adjourned at 7.02 p.m.,

20 to be reconvened on Thursday, the 26th day of

21 February, 2009, at 9.00 a.m.