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.
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
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
12 not the Registrar in The Hague
13 [Closed session]
11 Pages 16822-16893 redacted. Closed session.
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
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;
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
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
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
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.
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.
1 JUDGE ORIE: Then would that be true for other Defence counsel as
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
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
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
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,
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
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,
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
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
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
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
17 Prosecution being able to present the witnesses that it had on that very
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
1 1995 on Brioni Island
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
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
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
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
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
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
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
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
25 JUDGE ORIE: May I ask you to --
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
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
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
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
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
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
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
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
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.