1 Thursday, 26 February 2009
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.17 a.m.
5 JUDGE ORIE: Good morning to everyone.
6 Mr. Registrar, would you please call the case.
7 THE REGISTRAR: Good morning, Your Honours. Good morning to
8 everyone in the courtroom. This is case number IT-06-90-T, The
9 Prosecutor versus Ante Gotovina, et al.
10 JUDGE ORIE: Thank you, Mr. Registrar.
11 Before we proceed, the Chamber would like to start with giving
12 its decision on a motion that was filed yesterday; that is, defendant
13 Mladen Markac, emergency motion for a stay of proceedings in relation to
14 Witness 82. That motion is denied.
15 The matter at the basis of the request is, that matter, it being
16 whether the Chamber can receive the testimony of Witness 82, has been
17 litigated and decided. Both oral and written decisions were received by
18 the Chamber. The Chamber has thoroughly considered the matter and
19 decided that the reasons invoked by the Defence do not justify the
20 requested relief sought by the Markac Defence. That is, to bar
21 Witness 82 from testifying. The arguments that were put forward in the
22 emergency motion are mainly repetitious and do not justify a stay of
23 trial proceedings in respect of Witness 82.
24 Another still pending matter I would like to deal with is that
25 the Chamber still owes the parties a decision on Markac Defence request
1 -- the Markac request for reconsideration or, in the alternative, a
2 certification to appeal the Chamber's decision, denying the Markac
3 Defence its request to be present and cross-examine Witness 82 at the
4 place of the videolink. This request dates from the 24th of February,
5 2009, and asked the Chamber to reconsider or certify an appeal against
6 the Chamber's decision of the 20th of February of this year.
7 In that decision, which can be found on transcript pages 16.442,
8 the Chamber denied the Markac Defence motion to be present at the
9 videolink site in order to cross-examine Witness 82. The Chamber has not
10 yet issued its reasons for that decision.
11 On the 25th of February, 2009, the Chamber decided to deny the
12 Markac Defence request for reconsideration or, in the alternative,
13 certification to appeal and informed the parties accordingly through an
14 informal communication.
15 A chamber has the inherent discretionary power to reconsider a
16 decision in exceptional circumstances, or exceptional cases, if the
17 requesting party satisfies the Chamber of the existence of a clear error
18 of reasoning in the impugned decision or if particular circumstances
19 exist justifying its reconsideration, in order to prevent an injustice.
20 New facts or arguments that arise after the issuance of the decision may
21 constitute circumstances justifying reconsideration.
22 As the reasons for the Chamber's decision have not yet been
23 issued, the Markac Defence has not been able to point to any clear error
24 of reasoning. To a large extent the Markac Defence reiterates the same
25 arguments made to support its motion. Beyond this, the Markac Defence
1 quotes the guidelines on the modalities of video-conference testimonies
2 set out in a decision of the 25th of June 1996 by the Tadic Trial Chamber
3 and states that granting the Markac motion would be in accordance with
4 those guidelines. The Chamber notes that in this respect that the
5 decision mentioned had not been relied upon by the Markac Defence; the
6 Chamber did refer to it when informing the parties about the decision it
7 had reached. This can be found on transcript page 16.442. Either way,
8 this does not amount to a new fact or argument which arose after the
9 Chamber issued its decision on the 20th of February 2009. The Chamber
10 finds that the Markac Defence has not demonstrated that any particular
11 circumstances exist that would justify reconsideration in order to
12 prevent an injustice.
13 The Chamber therefore denies the Markac Defence request for
15 In the alternative, the Markac Defence requests certification to
16 appeal the Chamber's decision of the 20th of February. Rule 73(B) of the
17 Tribunal's Rules of Procedure and Evidence requires two cumulative
18 criteria to be satisfied to allow a Trial Chamber to grant a request for
19 certification to appeal; namely, first, that the decision involved an
20 issue that would significantly affect the fair and expeditious conduct of
21 the proceedings or the outcome of the trial; and, secondly that in the
22 opinion of a Trial Chamber, an immediate resolution by the
23 Appeals Chamber may materially advance the proceedings.
24 The Markac Defence argues that the Chamber's decision concerns
25 the accused's right to be tried in his presence and therefore involves an
1 issue that would significantly affect the fair and expeditious conduct of
2 the proceedings. The Chamber considers that the decision does not
3 involve the accused's right to be tried in his presence, nor does the
4 decision involve the issue whether Witness 82 should be heard via
5 video-conference link. The Chamber's decision is limited to the
6 modalities for the video-conference link for this witness. The Chamber
7 finds that the issue raised by the Defence, that is, the presence of
8 counsel in the room where the witness gives his evidence, does not
9 qualify as an issue that would significantly affect the fair and
10 expeditious conduct of the proceedings.
11 The Chamber further has considered that the Markac Defence has
12 not substantiated that an immediate resolution by the Appeals Chamber may
13 materially advance the proceedings.
14 Based on the forgoing, the Chamber denies the Markac request for
16 And this concludes the Chamber's decision.
17 A motion was pending requesting protective measures for
18 Witness 82.
19 MR. KUZMANOVIC: Your Honour.
20 JUDGE ORIE: Yes.
21 MR. KUZMANOVIC: Before we go on our motion that we filed
22 yesterday also was a request for an examination of the witness. So I'm
23 assuming that is denied as well?
24 JUDGE ORIE: That's denied as well.
25 A request for protective measures was filed, protective measures
1 sought were face distortion, voice distortion, and pseudonym.
2 MR. HEDARALY: Your Honour, in the motion it was only face
3 distortion and pseudonym. But I think having talked to the witness
4 yesterday briefly, voice distortion may as well, if the measures are
5 granted, be appropriate, in this case.
6 JUDGE ORIE: Mr. Hedaraly, I read from paragraph 10 of -- "for
7 the reasons set out above, and in confidential Appendix A, the
8 Prosecution requests the Trial Chamber to order the trial-related
9 protective measures of the use of a pseudonym, face, and voice distortion
10 for Witness 82."
11 MR. HEDARALY: Then I apologise, Mr. President.
12 JUDGE ORIE: The motion is granted; reasons to follow. This also
13 implies that we would need a break to have the protective measures in
14 place, which will take, Mr. Registrar, 20 minutes, if I'm well-informed.
15 One second.
16 [Trial Chamber and registrar confer]
17 JUDGE ORIE: If we take a break of half an hour now, then we
18 could do with one more break. If we would take a shorter break at this
19 moment, then we would need two other breaks.
20 Therefore, we'll have a break, and we'll resume at 10.00.
21 --- Recess taken at 9.31 a.m.
22 --- On resuming at 10.08 a.m.
23 JUDGE ORIE: Mr. Kuzmanovic, before the break, you asked me
24 whether the other request, that is a request to have Witness 82 medically
25 examined whether that was denied as well. I said yes. And did I that on
1 the basis of my recollection of what we have considered in this context
2 over the last -- well, let's say approximately the last week, and we, of
3 course, thoroughly considered all aspects.
4 I would like, however, to put on the record that the motion dated
5 the 25th of February, the emergency motion for a stay of trial
6 proceedings, and that was the motion upon which I delivered a -- the
7 decision of the Chamber, does not ask for a medical examination, although
8 it refers in the argument section in paragraph 7 to voir dire proceedings
9 which is, of course, not exactly the same, but the relief sought here is
10 a stay of proceedings, not the Chamber to order a medical examination,
11 and I'm not going to start, and this is not an invitation to make such a
12 request, because, of course, the Chamber has considered the motions in
13 their context. But I would like to have it clear on the record that they
14 were invited me to tell you whether the motion in every respect was
15 required, that the motion did not seek relief, in terms of a medical
16 examination of the witness.
17 MR. KUZMANOVIC: Your Honour, I'm not going to get into it again.
18 We obviously respectfully disagree with the decision, but that is neither
19 here nor there.
20 The issue I want to bring up before this witness testifies is the
21 issue of whether or not this witness should be entirely in closed
22 session, and we've discussed this during the break, and given the fact
23 that the cross-examination of this witness is going to entail -- it is
24 going to be impossible for during cross-examination for someone not to
25 figure out who this witness might be. Like we did with -- I think it was
1 Witness -- I don't want it mention the name but the number --
2 JUDGE ORIE: Yes. I do remember what you're referring to, yes.
3 MR. KUZMANOVIC: Who testified earlier it was a -- testified
4 earlier in this case. It just makes sense we think to put it entirely in
5 closed session because if the direct is going to be in open session with
6 the protective measures and then the cross is going to be entirely in
7 closed, I think that is dramatically unfair.
8 JUDGE ORIE: Mr. Hedaraly.
9 MR. HEDARALY: We would have no objection going into closed
11 [Trial Chamber confers]
12 [Trial Chamber and registrar confer]
13 MR. KUZMANOVIC: Before you begin, the witness what I was
14 thinking of was Witness 86.
15 JUDGE ORIE: Now it makes - although it is a very subtle
16 difference - it makes a difference whether closed session is ordered as a
17 protective measures, or whether we go into closed session during the
18 testimony of the witness.
19 May I take it then that the Prosecution and the Defence agree
20 that the protective measure of closed session would be granted.
21 The Chamber grants the now joint request. I do understand that
22 you oppose the protective measures as such, but given the fact that the
23 earlier requested protective measures were granted as a follow-up, you
24 would agree, and with Mr. Hedaraly, Mr. Hedaraly agrees with you, that we
25 hear the testimony of this witness with closed session as the one
1 protective measures because it would include all the others.
2 MR. KUZMANOVIC: Thank you, Your Honour.
3 JUDGE ORIE: The fact that this joint request now is granted does
4 not mean that the Chamber agrees with the reasons given for it, that it
5 would be unfair. That is, therefore, not included in the decision.
6 I add to this the following: That we reorganised our morning
7 session because we needed time for -- especially face and voice
8 distortion, closed session doesn't take time at all, so if it would have
9 been raised before the break, that would have been preferable.
10 We ...
11 [Trial Chamber and registrar confer]
12 JUDGE ORIE: Where I said that closed session covered all the
13 other protective measures, I should make an exception for pseudonym. So
14 pseudonym and closed session.
15 We then move into closed session.
16 [Closed session]
11 Pages 16744-16814 redacted. Closed session.
18 [Open session]
19 THE REGISTRAR: Your Honours, we're back in open session.
20 JUDGE ORIE: Thank you, Mr. Registrar.
21 The Chamber would like to hear from the Markac Defence whether
22 there's already a response for the application for protective measures in
23 relation to Witness 47.
24 MR. MIKULICIC: We would not object to the protective measures,
25 Your Honour.
1 JUDGE ORIE: Thank you, Mr. Mikulicic.
2 There is another relatively technical matter, Mr. Misetic, in
3 relation to a witness statement by Witness 43, under Rule 92 quater. In
4 submissions you made on the 10th of June of last year, submissions that
5 were entitled Gotovina's submission in relation to Trial Chamber's
6 decision on the first batch of Rule 92 bis witnesses, you may remember
7 that Witness 43 initially was a 92 bis witness but then became a
8 92 quater witness. But in this first submission, still under the 92 bis,
9 you attached to that submission certain documents pertaining to
10 Witness 43, which were never tendered.
11 The Gotovina Defence is invited, in order to have a complete and
12 accurate evidentiary background, to tender the relevant appendices, I
13 think they were A, B, and C of that submission.
14 MR. MISETIC: We'll do that, Mr. President.
15 JUDGE ORIE: And I think I noted that of one of the attachments
16 only two pages were translated. May I take it that was a summary of a
17 statement made, I think, in relation to a claim that some Official Note,
18 was it the intention to only present the two pages that were translated,
19 or was that a mistake?
20 MR. MISETIC: To be perfectly honest, Mr. President, without the
21 filing in front of me I'm not familiar with the document to be able to
22 answer your question at the moment, but I will look into it and get you
23 an answer by tomorrow morning.
24 JUDGE ORIE: Yes, well, if you would consider this, when
25 tendering the material, just to draw your attention to the fact that
1 there were some pages untranslated.
2 MR. MISETIC: Yes, thank you.
3 JUDGE ORIE: Yes, there is -- I have to look at an e-mail.
4 I have looked at the e-mail.
5 The Chamber is struggling a bit at this moment with several
6 motions to tender additional evidence. They may be of quite a different
7 character now and then. We have heard already from the Gotovina Defence
8 how unhappy they were with the -- with the spreadsheets, pages and pages
9 summarizing documents, all kind of attachments. The Chamber is still
10 analysing on what exactly is tendered and -- but still does not
11 understand why it came that late, even if it would be true, and we still
12 have to further analyse and consider that, but even if it would be true
13 that two documents on investigative steps by civilian authorities, when
14 part of that was raised, I think, on the 23rd of September of last year,
15 and we asked for the Defence to consider that, why, when tendering this,
16 it happens now, that is, a couple of days before the end of the
17 Prosecution's case, rather than after the Defence had had an opportunity
18 to that portion - I'm only talking about that portion, not about anything
19 else at this moment - why that was not tendered, well, let's say, after
20 two months the Defence had had an opportunity to look at them, rather
21 than at this moment.
22 The same is true for request to admit 11 killings related
23 documents into evidence and to add three documents to the Prosecution's
24 exhibit list, where normal time for response is 14 days. Why is it that
25 three days before the end of the Prosecution case, suddenly these filings
1 and rumours tell me that they might not be the last? Why --
2 Mr. Hedaraly.
3 MR. HEDARALY: Your Honour, I think in every case here given the
4 complex and the size, I mean, we do our best to try to get our evidence
5 in. But we do realize that it is unfortunate also for us as well at the
6 end to have to try to see what was and through witnesses and whatnot and
7 re-evaluate our evidence, and although we appreciate the difficulty it
8 causes, and that we have -- we have tried to introduce some of these
9 matters earlier and -- but that's just -- the best we could do under the
10 circumstances based on the issues that we have to cover during the case.
11 I apologise if there is any specific motion or specific documents
12 that the Chamber is interested in, I can assist the Court in trying to
13 answer those specific questions. But as a general matter, that is the
14 best can I do right now, Mr. President.
15 JUDGE ORIE: Yes. Well, just the explanation that you tried to
16 get them in earlier, but that it is now, only now, of course, is not a
17 very convincing argument at this moment.
18 If there's -- if there are any specific reasons why specific
19 documents should be tendered now, then, of course, the Chamber would like
20 to hear about that as soon as possible. But I just put on the record at
21 this moment that the Chamber, preparing decisions on the matters, is
22 bothering and, of course, we have not heard in detail. On one of them we
23 have heard just in brief observation by the Gotovina that this is just
24 too late. If anything more could be said about it, of course, we'd like
25 to hear that as soon as possible. Otherwise, we are handicapped in some
1 ways by the late filing and by -- Mr. Registrar is also now reminding me
2 that we should stop, and after I have received a similar message from
3 Chambers staff. That's what I then will do.
4 Ms. Higgins, unfortunately, you have to wait until tomorrow, and
5 even I can't give a guarantee. Depends on how the schedule looks
6 tomorrow whether sufficient time would be available, perhaps when we not
7 only sit in the morning, but have some time in the afternoon as well.
8 MS. HIGGINS: Thank you.
9 JUDGE ORIE: We adjourn for the day, and we resume tomorrow
10 morning, 27th of February, 9.00 in the morning, same courtroom.
11 --- Whereupon the hearing adjourned at 1.45 p.m.
12 to be reconvened on Friday, the 27th day of
13 February, 2009, at 9.00 a.m.