1 Tuesday, 24 February 2009 2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.22 p.m.
5 JUDGE ORIE: Good afternoon to everyone.
6 I think it was a wise decision not to schedule any hearing for
7 this morning.
8 Mr. Registrar, would you please call the case.
9 THE REGISTRAR: Good afternoon, Your Honours. Good afternoon to
10 everyone in the courtroom. This is case number IT-06-90-T, The
11 Prosecutor versus Ante Gotovina, et al.
12 JUDGE ORIE: Thank you, Mr. Registrar.
13 The Chamber informs the parties that it has decided to grant the
14 motion for protective measures for Witness 13; reasons to follow.
15 We move into closed session, and that will be for a rather long
16 period of time; this is to address the public gallery.
17 [Closed session]
11 Pages 16634-16676 redacted. Closed session.
1 [Open session]
2 THE REGISTRAR: Your Honours, we're back in open session.
3 JUDGE ORIE: Thank you, Mr. Registrar.
4 MR. HEDARALY: If I missed the -- I thought we're going address
5 the Markac motion regarding Witness 82.
6 JUDGE ORIE: Far more matters on the agenda.
7 MR. HEDARALY: There was an invitation yesterday by the Chamber
8 to see whether the physician -- to be vague, whether there was an
9 attachment to their filing about a doctor providing medical opinion, and
10 whether that doctor was the treating physician of Went 82 or not, and
11 it's very relevant obviously for --
12 JUDGE ORIE: The Chamber would like to hear, of course. The
13 Chamber is seeking further submissions on this matter.
14 Now yesterday there was a suggestion that there might be a
15 written response already. But it certainly was not promised.
16 Mr. Hedaraly, is there or is there not?
17 MR. HEDARALY: There can be one by tomorrow, given the problems
18 this morning. The slight chances that we have could have had them done,
20 JUDGE ORIE: If you think that the Prosecution could respond
21 orally. If you're satisfied with that opportunity, the Chamber will be
22 glad to hear your oral submissions on the matter.
23 We will resume at 25 minutes past 4.00.
24 --- Recess taken at 3.59 p.m.
25 --- On resuming at 4.31 p.m.
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
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.
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
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.
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
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 ...
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
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.
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.
1 We have Cermak's fifth bar table submissions, numbers
2 provisionally assigned range from D1332 to 1342, the latter number
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
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.
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.
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
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?
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
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
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
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
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,
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
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.
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
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
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
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
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
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,
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
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
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.
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.
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
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
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
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
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
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.
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
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
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 --
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
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
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.
1 So, therefore, the instruction to vacate P887 is not standing
3 Nothing else on MFIs.
4 I have another decision to read, but I would first like to give
5 an opportunity to the parties to make submissions in private session.
6 Mr. Registrar.
7 [Private session]
11 Pages 16702-16724 redacted. Private session.
24 [Open session]
25 THE REGISTRAR: Your Honours, we're back in open session.
1 JUDGE ORIE: Thank you, Mr. Misetic although your name starts
2 with M, just as the name of Mr. Margetts, I take it that the transcript
3 will be corrected.
4 The Chamber will now deliver its reasons for admission of Exhibit
5 P231226 tendered through Witness Josip Turkalj.
6 On the 15th of December, 2008, the Prosecution tendered from the
7 bar table in relation to the testimony of witness Josip Turkalj, an
8 Official Note, in relation to Slavko Turudic, which was subsequently
9 marked for identification by the Chamber, after the Markac Defence
10 objected to its admission, on the 18th of December 2008. During a
11 housekeeping session on the 22nd of January, 2009, the Chamber admitted
12 P1226 into evidence with reasons to follow.
13 On the 30th of January, 2009, a decision on admission of a number
14 of MUP Official Notes tendered through witness Zganjer was filed.
15 The Markac Defence's objection to the admission of P1226 was
16 based on the understanding that an Official Note is not a proper witness
17 statement, as it is not signed by the witness, and the subject of the
18 interview was never verified through the proper procedure, according to
19 Rule 92 bis of the Tribunal's Rules of Procedure and Evidence.
20 P1226 is the MUP Official Note in relation to Slavko Turudic, a
21 member of the Lucko anti-terrorist unit in August 1995. The
22 Official Note describes the impressions an observations of Turudic in
23 Grubori on the 25th of August, 1995, and was, therefore, found by the
24 Chamber to be relevant for Counts, 1, 6, and 7 of the indictment.
25 The Markac Defence's concerns regarding the probative value of
1 MUP Official Notes are addressed in a decision on admission of MUP
2 Official Notes, filed on the 30th of January, 2009. No other argument
3 challenging the probative value of P1226 has been advanced. Therefore,
4 the Chamber found P1226 to have probative value, and for these reasons,
5 the Chamber admitted P1226 into evidence.
6 And this concludes the Chamber's reasons on the matter.
7 I have one more issue on my list.
8 The Prosecution has filed a motion for admission into evidence of
9 statements of the accused Cermak and Markac and associated exhibits. The
10 Chamber urged the Prosecution to reduce the size of the statements or at
11 least to make a selection and to tender the most relevant portions.
12 Meanwhile, the size has been reduced.
13 The Defence asked for extra time. I think if we just look at the
14 motion, then the time-limits would expire tomorrow or the day after
15 tomorrow. Therefore, the Chamber has asked itself how much time should
16 be granted to the Defence to respond. I think that the reduction in size
17 may raise additional issues. At the same time, the fundamentals seem to
18 be the same.
19 Could I hear how much time would be needed to respond to this
21 MR. MISETIC: Your Honour, if we could have until Monday to file
22 a response, I would be grateful.
23 JUDGE ORIE: Yes, the Chamber had Friday on its mind.
24 MR. MISETIC: If it's Friday, then we'll work around it,
25 Mr. President.
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
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
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.
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
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
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
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
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.
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
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
25 MR. MISETIC: Yes.
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
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
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
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
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
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.