Tribunal Criminal Tribunal for the Former Yugoslavia

Page 16820

 1                           Friday, 27 February 2009

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 9.05 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.

 9             This is case number IT-06-90-T, the Prosecutor versus

10     Ante Gotovina et al.

11             JUDGE ORIE:  Thank you, Mr. Registrar.

12             I would first like to inform the parties that the courtroom has

13     been booked for this afternoon.  Whether we're going to use it is still

14     uncertain and depends on you.  We might finish our morning session a bit

15     later than usual, because the courtroom is not occupied this afternoon,

16     which means that we could go on until 2.00 or perhaps five or ten minutes

17     past 2.00, but that's the limit.  If, however, it will become clear that

18     we cannot finish by then, then we'll take the lunch break at quarter past

19     1.00.  We'll then continue at quarter past 2.00 and take as much time as

20     we need this afternoon.  That is one.

21             I was informed that there was an issue to be raised, although I

22     do not know which one it is.

23             MR. HEDARALY:  It's from the Prosecution.  If we can move into

24     closed session, it's in connection with the witness's testimony.

25             JUDGE ORIE:  Yes.  Move into closed session.

Page 16821

 1             THE REGISTRAR: [Via videolink] Good morning, Your Honours.  Can

 2     you hear and see me clearly?

 3             JUDGE ORIE:  I now can see you again, but we're not yet at a

 4     point where we're going to invite you to call the witness into your room,

 5     so therefore if you have some patience.

 6             THE REGISTRAR: [Via videolink] Yes, Your Honour.

 7             JUDGE ORIE:  So this is not yet a videolink situation at this

 8     moment.

 9             THE REGISTRAR: [Via videolink] Thank you.

10             JUDGE ORIE:  And in order to avoid whatever confusion about the

11     transcript, the Registrar that just spoke was the Registrar in Zagreb and

12     not the Registrar in The Hague.

13                           [Closed session]

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Page 16822











11  Pages 16822-16893 redacted. Closed session.















Page 16894

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17                           [Open session]

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

19             JUDGE ORIE:  Thank you.  Thank you, Mr. Registrar.

20             Ms. Higgins, I think you still wish to make oral submissions on

21     the Puhovski documents.

22             MS. HIGGINS:  I'm grateful, Your Honour.

23             Your Honour, the submissions that I made on a previous occasion,

24     on the 12th of February, and the further submissions that I make this

25     afternoon concern matters of unreliability which Trial Chambers before

Page 16895

 1     this Tribunal have accepted go to the heart of the issue of admissibility

 2     and not weight.  I've already drawn your attention to the two Milutinovic

 3     decisions which I have previously cited and support, dated the 11th of

 4     July, 2006, and the 1st of September, 2006.

 5             Your Honour, we submit that the unreliability in this case

 6     concerning the report is so pervasive and all-encompassing that it does

 7     not meet, in this instance, the threshold of admissibility pursuant to

 8     Rule 89(C).  During the course of cross-examination of Mr. Puhovski, we

 9     submit that further indicators of unreliability came to light, and I'd

10     like to take this opportunity to briefly address the Chamber on the most

11     salient so that you have them before you when making the decision

12     concerning the report.  I should stress that all the references come from

13     the date of the 13th of February and the cross-examination on that day.

14             The first factor, Your Honour, is that Mr. Puhovski was not able

15     to provide the dates of the 10 to 12 fact-finding mission visits to the

16     region or the particular members that took part, a reflection perhaps on

17     the limited input he had into the role that was played out by those

18     missions, and I cite page 15908 to 10 for the record.

19             Secondly, he was not able to assist as to whether or not the

20     underlying material concerning those original fact-finding mission

21     reports had ever been disclosed to the ICTY; page 15910.

22             It was clear from his testimony that he did not have any

23     involvement in the writing of the reports and, as he stated himself, was

24     not a fact-finding member, points which we submit go to the fact that he

25     cannot speak, in fact, to the compilation of those underlying materials;

Page 16896

 1     page 15911.

 2             On the same page, it was clear from his testimony that he had

 3     visited Knin only for a matter of a couple of hours and, therefore, had

 4     extremely limited personal knowledge, being unable himself to speak to

 5     the content of any of the report.  Concern was also raised in respect of

 6     the qualification of the members of the fact-finding mission, it coming

 7     to light that, in fact, three of the members were students who had had no

 8     formal training as to how to conduct a mission or interviews, issues

 9     again we say go to the reliability of the compilation of the report.

10     And, Your Honour, for reference that can be found at page 15917.

11             Concerning the way in which matters were or were not able to be

12     verified, Mr. Puhovski assisted the Court by providing information that

13     at the time of 1995 to 1996, contacts with the police to check the

14     accuracy were, in fact, nonexistent; page 15912.  He was not able to

15     assist, either, with whether or not there had been a peer review of the

16     1999 version of the report and could not assist with the provision of a

17     questionnaire which would have assisted perhaps us with the method of

18     questioning that was undertaken during those fact-finding missions.  And

19     for the record, I cite pages 15915 and 15918.

20             Crucially in this case, Your Honour, there were no witness

21     statements created as a result of the missions that took place.  We know

22     from Mr. Puhovski that only audio and notes were taken, no written report

23     that was ever verified or signed or taken under oath by any of the

24     interviewees, and that reference can be found at page 15920.

25             He was not able to assist with whether or not the audio cassettes

Page 16897

 1     or the notes had additionally been provided to the Prosecution, and it's

 2     certainly the case that we, the Defence, have not received them.

 3             Importantly, there was neither a bibliography or index listing

 4     all the source materials that went to making the publication of the 2001

 5     report.  And in an attempt to assist the Bench and the witness in

 6     addressing this issue, Your Honours will recall that tabs A and B were

 7     provided as examples of where there was either no footnoting or no

 8     provision of an interviewee's name, factors which we say go significantly

 9     to the unreliability of this nascent NGO report.

10             Your Honours, you may recall that in fact Mr. Puhovski

11     acknowledged that the aim of the report was certainly not one which was

12     made for the purpose of a court.  And we submit that in addition to the

13     filing that you've received from the Cermak Defence team, the situation

14     the Bench faces is on all fours with the situation faced by the

15     Trial Chamber in Milutinovic, and we request that the same approach be

16     taken in order to ensure that the discretion provided to the

17     Trial Chamber under Rule 89(C) is properly exercised in this case.

18             Your Honours, unless you have any questions, those are my further

19     submissions.

20             JUDGE ORIE:  Thank you, Ms. Higgins.

21             Mr. Hedaraly.

22             Yes, Mr. Waespi, you were hidden behind the screens, and I

23     couldn't see you.  Yes.

24             MR. WAESPI:  Yes.  Very briefly, I would like to refer to the,

25     the filings we made in response to -- in reply to the response of the

Page 16898

 1     Cermak Defence team, and obviously all these elements that Ms. Higgins

 2     raised go to the weight.  You have seen Mr. Puhovski, in an extremely

 3     transparent way, answering all the questions from the Prosecution, from

 4     Your Honours, from the Defence.  And he made clear what his part in

 5     drafting was, in editing, in debriefing the members who came back from

 6     missions.  He listened to tapes, he talked to the fact-finders.  He knows

 7     very well the professionalism of the main drafter, Mr. Merkel.  He knows

 8     the professionality of the other people.  They might as well be students,

 9     but everybody knows in this courtroom how important, dedicated, and

10     thorough students are compared to, perhaps, to other people.

11             Your Honours, in sum, I think it's clear that this report is

12     reliable.  The way it's been drafted is extremely transparent, certainly

13     more than many other exhibits that have been admitted in this case.

14     Therefore, Mr. President, Your Honours, we would maintain our submission

15     to have the report admitted.

16             Thank you.

17             JUDGE ORIE:  Now, from a procedural view, Mr. Waespi, you

18     tendered a report.  Ms. Higgins, is there for the responding part.  If

19     you would like to add anything, Ms. Higgins, it's clear to the Chamber

20     that you point at -- the parties point at different aspects of how this

21     report was produced and that whereas Mr. Waespi says it's all about

22     weight, you clearly say that the level of reliability has sunk so low

23     that it's admissibility and not weight anymore.  That's what I understood

24     from the -- if you would like to add anything, you're the last one.

25             MS. HIGGINS:  Very briefly, Your Honour.

Page 16899

 1             In this case, the Prosecution's standard reply, that matters go

 2     to weight, is not, we submit, appropriate in this case, given not only

 3     the extent but the nature of the unreliability issues which have been

 4     raised and the plethora of issues that this Bench is faced with as a

 5     matter of fact in determining this particular report.

 6             Your Honour, I have nothing further to add, as I submit these

 7     issues have been fully litigated and put before Your Honours in both the

 8     oral submissions and the written filings that you have.

 9             JUDGE ORIE:  Thank you, Ms. Higgins.

10             Exceptionally, we have some time left.  Are there any issues to

11     be dealt with?

12             I would have one, and I'll start with that one immediately; that

13     is:  The Prosecution recently filed a motion to admit extracts of

14     presidential transcripts into evidence, five extracts.  The extracts come

15     from a series which, from what I remember, were used by both parties.

16     That's also one of the reasons given by the Prosecution why they should

17     be admitted.  When could the Chamber expect to receive an answer?

18             I'm looking at any Defence counsel that could express himself on

19     it.  The Rules say 14 days.  I'm aware of that.

20             MR. MISETIC:  I was in the back row for a reason this morning,

21     Judge.  I'll talk to Mr. Mikulicic later.

22             We would need at least a week, so we could file it -- I'm sorry,

23     we can do it by Wednesday of next week.

24             JUDGE ORIE:  By Wednesday of next week.

25             MR. MISETIC:  Yes.

Page 16900

 1             JUDGE ORIE:  Then would that be true for other Defence counsel as

 2     well?

 3             MR. KUZMANOVIC:  Yes, Your Honour, we'll consult, and maybe we

 4     could have a joint filing.

 5             MR. KAY:  Yes, Your Honour.

 6             JUDGE ORIE:  Yes.  Then, Mr. Hedaraly, one of the things, and

 7     rather to put it on the record now than at a later stage, I think in a

 8     table attached to the motion, you say, Well, there's an extract of this

 9     date, et cetera, which is not -- the transcripts, themselves, gives no

10     clue as far as dates are concerned, neither gives the full insight into

11     those who were present or may have been present during the meeting of

12     which -- in which this conversation took place, which does not

13     necessarily mean that everyone always stayed in the meeting or that no

14     one came to the meeting at a later stage.  What do you have in mind, if

15     they would be admitted and the Chamber would not know what the dates are?

16             MR. HEDARALY:  I believe in the description of the -- of the

17     exhibits, the dates are mentioned.  What we try to do is, based on the

18     guidance of the Chamber, only provide a few pages.  What we can do is

19     again provide the first page.  In some instances, there's a list of

20     participants, but at least the date.  Then we can add that to those five

21     extracts, those five pages, and we can submit that in very short order to

22     that it's available to the Chamber.

23             JUDGE ORIE:  Yes.  Perhaps you already to the Defence the

24     additional information and the basis for such information which you would

25     like to add, so that the Chamber is not getting lost in not knowing what

Page 16901

 1     we're talking about.

 2             MR. HEDARALY:  Certainly, Mr. President.

 3             MR. MISETIC:  Mr. President, let me just add, I'm reviewing the

 4     motion right now quickly, this is the same problem that I've raised

 5     earlier this week, and I would add that taking excerpts of conversations

 6     that parties think are favourable to them, doing it at the end of the

 7     case, obviously before they rest, then we'll have to review all the

 8     presidential transcripts that have exculpatory information in them and do

 9     our own Bar tables, and go back and forth in such a manner, and also try

10     to put these conversations back into context, because I'm sure that the

11     Prosecution didn't select exculpatory portions of the same meetings or

12     perhaps put them in the context.  I see some are from 1994, others are

13     from 1998.  This is all going to take some time.  So to the extent that I

14     indicated that we can respond by Wednesday, that will be perhaps a simple

15     response, but not a full response that would be required if this now

16     comes into evidence.

17             JUDGE ORIE:  You say these portions now to be added to the

18     evidence triggers a need to inspect whether these transcripts might

19     contain any exculpatory evidence?

20             MR. MISETIC:  Not only exculpatory evidence, Your Honour, but

21     context is, of course, always important, and we'll have to read the

22     entire transcript to see whether the Chamber needs to be advised of the

23     content.  One of the transcripts I don't see we'd have a problem with,

24     other than it should go in, in its entirety, which is from the 17th of

25     August, but I will have to go back and look at 1998, 1994, et cetera, and

Page 16902

 1     determine both relevance, context, and the potential of exculpatory

 2     material as well.

 3             JUDGE ORIE:  Thank you.

 4             Yes, Mr. Hedaraly.

 5             MR. HEDARALY:  Just briefly, I mean, I was trying to strike a

 6     balance between not putting in over 200 pages, to try -- we're trying to

 7     put it in proper contextual manner.  If there is, of course, something

 8     missing from the context, we've tried to be careful.  Now, to the extent

 9     there's other portions that are exculpatory, that's a different issue,

10     because the issues that we are raising are in those extracts.

11             JUDGE ORIE:  Yes.  May I suggest that if -- when looking at these

12     documents or these extracts, that the Defence would consider that could

13     be admitted if page X, Y, or Z would be add to that or if additional

14     information would be given, that we do not start debating this on

15     Wednesday, but at -- if possible, that already an exchange between the

16     parties on what is the course of possible objections that might -- might

17     resolve.  Again, Mr. Misetic, I'm fully aware that you say, We'll, first

18     have to look at it, but it's a kind of an invitation rather than

19     something that comes even close to an instruction.

20             MR. MISETIC:  We will, of course, do the best we can,

21     Your Honour, but I would ask the Court to keep in mind that within the

22     past four days, the volume of material that we now have to review, a

23     witness coming on Monday and potentially -- which I'm sure is an issue

24     we'll get to now, potentially another four or five witnesses coming,

25     while you will certainly never hear a complaint from us about staffing,

Page 16903

 1     nevertheless, there's two lawyers on our team on a regular basis, and

 2     there's only so much we can do.  Thanks.

 3             JUDGE ORIE:  Yes.  I think it's not a secret for anyone that the

 4     last week, if not weeks, have been relatively hectic in the material that

 5     was brought in and that we had to digest, and I'm -- I have no further

 6     comment on that, anyway, at this moment.

 7             This was the issue I wanted to put on the record.  Are there any

 8     other procedural matters?

 9             You more or less hinted at one already, Mr. Misetic.

10             Mr. Hedaraly, do you have any?

11             MR. HEDARALY:  I think the Chamber is aware of the other

12     witnesses that the Prosecution intends to call.  We have filed --

13             JUDGE ORIE:  Let me --

14             MR. HEDARALY:  So if that is something that the Court wishes to

15     address, we can do so.  And I think Mr. Misetic raised with us a

16     scheduling issue that he has, so perhaps it is an issue that we should

17     address now.

18             JUDGE ORIE:  Yes, let me see.  Is it true that you wanted to have

19     one additional one to your list?  The Chamber -- I think -- I beg your

20     pardon?

21             MR. HEDARALY:  They're already on our list, Your Honour.  They

22     were the ones to be determined that had not been scheduled.  They were

23     never dropped from the Prosecution's witness list.  There are five of

24     them in total, all fairly short.

25             JUDGE ORIE:  And that's all about -- let me just have a look,

Page 16904

 1     because I am aware of the Prosecution's wish to hear the testimony of

 2     other witnesses, but I haven't seen any requests until now, but they may

 3     well be there.

 4             MR. HEDARALY:  There was one filing that was distributed this

 5     morning, with respect to Witness 63.

 6             JUDGE ORIE:  Let me see whether I have received a copy already.

 7             MR. HEDARALY:  It was distributed via e-mail at 11.08 this

 8     morning by the court ushers.

 9             JUDGE ORIE:  Yes.  We should take longer breaks so that we have

10     more time to review whatever has come in since the start of the morning

11     sessions.  I have it in front of me now.  It is the Prosecution

12     submission of Rule 92 ter statements and associated -- no, is that --

13             MR. HEDARALY:  Yes, that's correct, Mr. President, that's the

14     first one, and then we sent a courtesy copy of a filing for the next --

15     for four additional witnesses.

16             JUDGE ORIE:  Yes, which brings the total to five.  Let me -- so

17     the first one is about Witness 63.

18             MR. HEDARALY:  At 12.58, the courtesy copy was sent to the legal

19     officer, as well as the Defence, for Witnesses 59, 60, 61, and 62.

20             JUDGE ORIE:  So we have had an opportunity already, for 33

21     minutes, to look at them.  I have briefly looked at the first one.  I now

22     look at the second one.  You said the second one arrived when?  A

23     courtesy copy was sent at what time?

24             MR. HEDARALY:  12.58.  Perhaps I'm --

25             JUDGE ORIE:  Yes, 12.58.  My e-mail goes until 12.55, which

Page 16905

 1     illustrates a bit the disorderly situation.  I can't look at that,

 2     because we have to speed up the megabytes that can be transferred so that

 3     we receive in time your submissions, Mr. Hedaraly, and it's a courtesy

 4     copy anyhow.  If, however, you'd like to say something about it,

 5     Mr. Misetic, apart from that late filing, needs, at this moment, no

 6     further factual explanation.  If there's anything you'd like to say about

 7     it, or Mr. Hedaraly, if you would like to address the Chamber on it, we

 8     will patiently listen.

 9             MR. HEDARALY:  Your Honour, just for perhaps a few minutes of

10     background that may be necessary to fully understand the issue at stake.

11             These witnesses relate to the 31 July 1995 meeting that happened

12     in Brioni and the transcripts that came from there.  Now, we have, in the

13     course of investigating this case and in the last years, had heard

14     objections from the Defence as to the authenticity and reliability of

15     that piece evidence.  For that reason, we hired an expert, Dr. French, to

16     prepare an expert report, and we put these five witnesses on our witness

17     list.

18             Following the start of the trial, as the trial was proceeding,

19     the transcript of that meeting, P461, came into evidence unobjected

20     [sic].  Further to that, the audiotape itself came into evidence

21     unobjected.  Finally, whereas there was an objection initially from the

22     Defence regarding the expert report of Professor French under

23     Rule 94 bis, that objection was later withdrawn.

24             Now, in conversations that we've had with the Defence, with

25     Mr. Kehoe and Mr. Misetic, our understanding was that the lack of

Page 16906

 1     objection to those documents and those exhibits meant that the

 2     authenticity of the tape and the fact that it accurately captured what

 3     happened at the meeting on 31 July 1995 in Brioni was not an issue

 4     anymore in this case.

 5             Now, following Mr. Rajcic's testimony which was completed Monday,

 6     the issue resurfaced, and Mr. Kehoe made some statements in court that

 7     led us to believe that perhaps the position of the Defence was different

 8     than the one we had understood.  When we asked the Defence whether they

 9     would stipulate to the authenticity of the 31 July 1995 tape which came

10     into evidence without any objections, we were told that they could not

11     provide such a stipulation at this time, despite the fact that they had

12     not objected to the tape or the transcript.

13             Faced with this situation, the Prosecution does not want to be in

14     a position where it can know if the authenticity and the reliability of

15     the tape and the fact that it accurately reflects what happened on the

16     Brioni Island on 31 July 1995 comes under challenge without the

17     Prosecution being able to present the witnesses that it had on that very

18     issue.

19             So for these reasons -- I mean, these discussions have been

20     ongoing for several months now.  That's why these witnesses were never

21     scheduled and were kept on a "to be determined" list, as the Chamber has

22     seen on our last scheduling list, but now, it seems that since we cannot

23     have this agreement with the Defence that we understood was the

24     consequence of the lack of objection on the other pieces of evidence,

25     that we need these witnesses to establish that what happened on 31 July

Page 16907

 1     1995 on Brioni Island is what is reflected on the tape and what is

 2     reflected on the transcript.  This is the reason for the late filing, and

 3     this is the reason why we need to call now these five witnesses.

 4             JUDGE ORIE:  Mr. Misetic.

 5             MR. MISETIC:  Needless to say, I completely disagree with what

 6     Mr. Hedaraly has laid out as the background here.  The situation is

 7     rather clear.

 8             First of all, we object to the fact that these witnesses are

 9     being called with less than 14 days' notice, as was required by the

10     agreement of the parties.  We're now being given these witnesses and

11     being told of this four days in advance, for five additional witnesses,

12     with no valid reason having been offered by the Prosecution.

13             Second, I forwarded the Chamber an e-mail Mr. Hedaraly sent on

14     the 25th of November, which was that if there is no objection to

15     Mr. French's report coming into evidence, then the Prosecution will not

16     need to call the following witnesses to testify.  Those are, I think,

17     five or six -- there were six names there.  Five of them are now being

18     brought back to the -- to be -- to testify next week.  The fact of the

19     matter is we then didn't object to Mr. French's report coming in.

20             Now, after having reached that agreement, and there is no open

21     issue that Mr. Hedaraly claims about in our negotiations, the issues were

22     resolved between the Prosecution and the Defence.  There was nothing left

23     open.  We, at the last MFI session, didn't object to the report coming

24     in, Your Honour will recall.  The report comes in, and then two days

25     later they want to now call the witnesses they said they weren't going to

Page 16908

 1     call if the report would come in.

 2             Nothing happened in the examination of Mr. Rajcic that the

 3     Defence did at all.  The Prosecution came back, and I will -- the Court

 4     can review Mr. French's expert report.  Mr. French's expert report says

 5     he cannot exclude the possibility that there was some manipulation in the

 6     tape, for whatever it's worth; otherwise -- but that's part of his

 7     conclusion.

 8             The Prosecution then comes back to us and says, and this is

 9     yesterday or the day before yesterday, You have to stipulate that it's

10     authentic or we're going to call these four witnesses.  And I said, Why

11     would we stipulate to something now that's beyond what we were discussing

12     before?  We were first talking about admissibility.  Now they want a

13     complete stipulation.  And this is -- again, I have to reach this

14     conclusion of a last-minute review that's apparently being done by the

15     Prosecution and the various lawyers in the Prosecution who are handling

16     certain aspects of the case, which is resulting in massive filings, new

17     exhibits, and now the need to call four or five additional witnesses to

18     address issues that have never been brought up by the Defence in this

19     case.

20             So I object to the classification that somehow this is the result

21     of something that the Defence did.  The Court will recall that it was the

22     Prosecution and Mr. Russo who brought up the Brioni transcript with

23     Mr. Rajcic.  We didn't even put that transcript to Mr. Rajcic in the

24     re-cross of him.  This is all they're doing, and now -- that happened on

25     Monday.  By Thursday, we're getting an e-mail saying, Well, now we feel

Page 16909

 1     that we have to call these additional four witnesses.

 2             The situation is this, Mr. President:  The transcript is in, the

 3     audio is in, the expert report is in without cross-examination and

 4     without the need to call the witness, and the Defence has not asserted

 5     any affirmative matter in the cross-examination of witnesses on that

 6     issue.  I would submit to Your Honours that that being the case, there is

 7     nothing that the Defence has done that's suddenly now triggered the need

 8     to call an additional four or five witnesses.

 9             I would raise two points:  One, we have no problem if something

10     in the Defence case arises on this issue, and we call a witness to

11     testify as to authenticity, that it is our position that the Prosecution

12     should be allowed, in rebuttal, to call these witnesses if that happens

13     in the Defence case.  We will have no objection to them being allowed to

14     call these witnesses in rebuttal.  The second is, and the reason that I'm

15     taking umbrage with it at this point, is, again, regardless of what may

16     be perceptions or misperceptions by the Office of the Prosecutor, we have

17     staff who are human beings here, and I cannot, on my staff and myself,

18     continuously -- and this is now from -- certainly from the time

19     Mr. Rajcic came to testify with a hundred exhibits that are not on the

20     65 ter list, this has now been a two-week intensive process of

21     last-minute exhibits, last-minute filings, Bar-table submissions, four

22     additional witnesses, and without the 14 days that are typically

23     required, to now get ready for cross-examination of these people that are

24     coming forward.  This is simply not fair, and it's unnecessary.  And I

25     would submit to Your Honours that if the Prosecution has a problem in the

Page 16910

 1     Defence case as a result of witnesses that may or may not be called, if

 2     there is a Defence case, then they should be allowed to call witnesses in

 3     rebuttal.

 4             Thank you.

 5             JUDGE ORIE:  Yes.  Your offer, to say the least, that you would

 6     not object against other witnesses to be called is dependant on any

 7     challenge of the authenticity on the basis of witnesses to be called by

 8     the Defence.  What we see, as a matter of fact, who triggered it or not,

 9     but I take it that the Prosecution is more concerned about a contestation

10     of the authenticity on the basis of evidence that was received after the

11     French report was published, is that -- or published is issued?

12             MR. MISETIC:  That's not correct.

13             JUDGE ORIE:  I'm asking Mr. Hedaraly whether it's correct or not.

14     But I said, But, I take it, that the Prosecution is more concerned.

15     I think the only one who could answer that question is the Prosecution,

16     Mr. Misetic.

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

18             It is not true that issues were left not open.  Mr. Kehoe did

19     suggest during Mr. Rajcic's testimony, towards the end, that the

20     conversation may not be accurately reflected.  I don't want to speak for

21     Mr. Misetic.  But he has indicated to us issues that he thinks are still

22     present with the -- with the -- in the course of asking for the

23     stipulation, he has raised with us some concerns that he thinks that he

24     has.

25             JUDGE ORIE:  May I ask you to --

Page 16911

 1             MR. HEDARALY:  Of course.

 2             JUDGE ORIE:  Is one of these concerns directly related to the

 3     evidence given by Mr. Rajcic who, as I remember, testified that he had no

 4     recollection of certain portions that were played or read to him, whereas

 5     there was no dispute about one meeting that took place on that day in

 6     that place?

 7             MR. HEDARALY:  Not that there was more than one meeting, but

 8     whether that meeting -- not only whether that meeting took place, but

 9     whether the complete meeting was represented in the full tape and the

10     full transcript.

11             JUDGE ORIE:  Yes.

12             MS. HIGGINS:  If I may just add on one point Mr. Misetic has

13     raised.

14             So, on the one hand, I think when Mr. Misetic says that they had

15     not raised any affirmative -- any positive defence or challenge to the

16     authenticity of it at this stage, that's why we find ourselves in that

17     position.  On the one hand, there is no formal challenge made to it, but,

18     on the other hand, there is no agreement that the tape is authentic.

19     That's why we find ourselves in this situation.

20             To the extent that Mr. Misetic has offered that we could call

21     these witnesses in rebuttal if that issue was raised by the Defence, this

22     is something that the Prosecution would like for the Chamber to confirm,

23     that the Prosecution would have the right to call these witnesses in

24     rebuttal if any challenge was made during the Defence case about the

25     authenticity and reliability of the tape and the transcript, and that no

Page 16912

 1     such challenge was made up to now.  And absent such decision or ruling,

 2     then the Prosecution will want to call these witnesses.

 3             JUDGE ORIE:  Mr. Misetic, one more minute.

 4             MR. MISETIC:  Yes.

 5             Well, Mr. President, let me just state that it is again incorrect

 6     to say that Mr. Kehoe did anything on that point.  Mr. Kehoe objected to

 7     the formulation that Mr. Russo made in the question, which is an attempt

 8     to lead the witness by saying, and I quote:  "Are you aware that

 9     General Gotovina did not object to the admission of this transcript?"

10     And then there was an objection.  And then in explaining it, Mr. Kehoe

11     said, We don't know whether Mr. Rajcic was present at this meeting, since

12     he is not identified on the cover sheet as having been present, which is

13     something I believe Mr. Hedaraly --

14             THE INTERPRETER:  Counsel, kindly slow down for the interpreters.

15             JUDGE ORIE:  I have to take the blame.  I granted only one

16     minute.

17             Mr. Misetic.

18             MR. MISETIC:  Thank you.

19             Mr. Hedaraly will, of course, stipulate to the fact that

20     Mr. Rajcic's name does not appear on the cover sheet of the 31 July

21     meeting, so it is incorrect to say that Mr. Kehoe did anything to

22     challenge the transcript in the cross-examination of Mr. Rajcic.

23             Secondly, it is again incorrect to say that they learned anything

24     within the last four days that they haven't known about for the last four

25     years, so there is nothing that arose that required them now to make any

Page 16913

 1     sudden changes.

 2             Third, as a practical matter, I away Tuesday, Wednesday, and at

 3     least Thursday of next week, and these would be my witnesses, and I have

 4     to testify in another court proceeding.  So there's a practical issue for

 5     me here as well, Mr. President.

 6             JUDGE ORIE:  Thank you, that's understood.

 7             Mr. Hedaraly, you introduced the issue at a rather late stage.

 8     We have now heard the response by Mr. Misetic.  Anything other thing to

 9     be added by any other Defence counsel on the matter?

10             MR. MIKULICIC:  We completely join the arguments of the

11     Gotovina's Defence, Your Honour.

12             JUDGE ORIE:  Mr. Kay, Cermak Defence?

13             MR. KAY:  Yes, Your Honour.  I think the Court is aware of the

14     amount of materials that we're all dealing with and the issues that they

15     cause to be raised; particularly, the further background research that

16     each party has to undertake.

17             JUDGE ORIE:  Yes.

18             MR. HEDARALY:  I just want to clarify one thing.  I'm sorry.  I

19     know time is up.

20             These are not additional witnesses who we are seeking leave to

21     add.

22             JUDGE ORIE:  You have said that already, Mr. Hedaraly, so there's

23     no need to -- they were not scheduled, when they would testify, but they

24     are on your witness list.  That, therefore, is repetitious.

25             A practical question:  Would there be any need for further

Page 16914

 1     written submissions on the matter, or would the parties consider that

 2     there has been a sufficient response?  If you would like to think it over

 3     the weekend and say, We'd like to reserve the possibility to file

 4     something on Monday morning, that of course would be accepted by the

 5     Chamber, but if not, then the Chamber will consider the matter to be

 6     litigated and ready for a decision.

 7             MR. HEDARALY:  Your Honour, in terms of practicality regarding

 8     scheduling these potential witnesses, should we not schedule them for

 9     next week, or for late next week?  As we work to find when they're

10     available, that's obviously a matter that we can start working on.  We

11     have already contacted some of these witnesses, so just in terms of

12     purely scheduling the matter.

13             JUDGE ORIE:  Yes, I see your point, Mr. Hedaraly.  At the same

14     time, if the speed of the e-mail is insufficient to get the application

15     to the Chamber and then already to ask the Chamber to hurry up because

16     there are scheduling issues, that is -- that's at least -- I know that

17     the speed of things have developed over the last 50 years, but this goes

18     really to a limit where perhaps slowing down might be more the right

19     thing to do.

20             MR. MISETIC:  In answer to your question, Mr. President, we will

21     not be making any additional written submissions.

22             JUDGE ORIE:  Then we'll consider the matter, Mr. Hedaraly.

23             Then we adjourn for the day.

24             Yes, Mr. Kuzmanovic.

25             MR. KUZMANOVIC:  Your Honour, something that doesn't need any

Page 16915

 1     response.  You had asked if we would on the issue transcripts of the

 2     accused, if we can get something filed by today, I'm just telling you

 3     that I'm not going to be able to do it until Monday.  You had given us

 4     until Monday, but just I wanted to let the Chamber be aware of that.

 5             JUDGE ORIE:  Yes, we don't have to check our e-mail every minute

 6     over the weekend.  Yes, that's understood.

 7             MR. WAESPI:  Mr. President.

 8             JUDGE ORIE:  Yes, Mr. Waespi.

 9             MR. WAESPI:  I'm sorry to ask for some more clarification.

10             Can we expect a ruling by the Trial Chamber early next week?  Or

11     also the second point is the availability of Mr. Misetic.  Of course, we

12     could accommodate him.  We just need to know -- we are flexible.  The

13     witnesses have been contacted.  They can come almost any time.

14             JUDGE ORIE:  Yes, Mr. Waespi.  If the Prosecution case is not

15     concluded, there is a certain risk in that, as you may be aware; that is,

16     that new motions are coming in for further evidence.  The Chamber will

17     consider the matter.  The Chamber will consider both the practical

18     issues, if it comes to that, if the Chamber considers that there will be

19     any practical problems.  But it's very difficult for us to say anything

20     if we have not even seen the motion.  That's -- even on my e-mail, I

21     couldn't open it.

22             Yes, Mr. Waespi.

23             MR. WAESPI:  I'm sorry to insist on the point.  Perhaps it's more

24     the almost procedural issue of whether the Trial Chamber would tell us

25     that they would agree to a possible rebuttal case if the Defence

Page 16916

 1     apparently doesn't object and if it would come up.  That's the only

 2     issue, if the Trial Chamber would tell us --

 3             JUDGE ORIE:  Mr. Waespi, we'll look at the motion.  We have heard

 4     the answer, and that's how matters stand.  And I really do understand

 5     that you'd like to get all kind of guidance, but if you want to have this

 6     at five minutes to 2.00, you should have filed the motion earlier.

 7     That's as simple as it is.

 8             Therefore, we'll adjourn, and we'll resume on Monday, the 2nd of

 9     March, 9.00, Courtroom I.

10                           --- Whereupon the hearing adjourned at 1.54 p.m.,

11                           to be reconvened on Monday, the 2nd day of March,

12                           2009, at 9.00 a.m.