1 Wednesday, 4 March 2009
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.16 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 The Chamber apologises for the late start, but the parties may
12 understand that further preparations in the early morning hours are
13 needed to deal with the matters which are on our desk at this moment; and
14 also that it sometimes, despite the early start, takes more start than
16 I have an agenda on matters I will deal with before the first
17 break, and then we might again have a bit of a longer break.
18 Mr. Misetic, I was informed that you sent an e-mail that where we invited
19 you to further give your priorities that you are available for the whole
20 day, and the Chamber appreciates your availability, and it might have
21 taken you quite some efforts to achieve this.
22 I first start with, could I say, the painful things. That the is
23 the Chamber made a mistake yesterday on the 3rd of March, and if I'm not
24 mistaken it was at transcript page 17.085, with respect to D1439. The
25 Chamber stated - but it was an error - that Exhibit D1439 was admitted
1 into evidence. D1439 is a record of a statement taken of Witness 82, by
2 the police administration in Zagreb
3 Chamber has heard oral submissions on the matter on the 27th of February,
4 oral submissions in court with respect to the admission of this document;
5 and once the Chamber had heard the submissions, also the submissions
6 specifically by the Markac Defence, D1439 was included on the list of
7 exhibits that were marked for identification.
8 Again, the Chamber made a mistake and the status should change
9 into tendered -- marked, not admitted. After the first break, the
10 Chamber will give in further detail the reasons for the non-admission.
11 Mr. Misetic, I think we still owe you an opportunity to respond
12 to the Prosecution's motion to admit two documents on investigative steps
13 taken by civilian authorities.
14 MR. MISETIC: Mr. President, I am still waiting for my team to
15 get back to me on that. I asked them last night to take a look at that
16 time. If I can have until after the first break, I will let you know.
17 JUDGE ORIE: We will leave it until after the first break. I
18 hope this will not be the fate of most of the agenda items before the
20 Then the Chamber has been informed about positions taken by the
21 Gotovina and Markac Defence on the presidential transcripts. I just
22 summarise from what I learned from the e-mails that were copied to the
23 staff; that is, that the Gotovina Defence would like to add other
24 transcripts of the same series; and to have added also two videos in --
25 which explain the position taken by Mr. Tudjman.
1 I also took from the e-mails that you, Mr. Russo, that you would
2 object against adding to this. I've now put this on the record because
3 this is just a very short summary of what we learned the positions would
5 Mr. Misetic.
6 MR. MISETIC: I think we're missing -- mixing two different
7 issues up. I don't believe I got an e-mail from Mr. Russo indicating an
8 objection to the presidential bar table or transcripts being bar tabled
9 by us. I think that was a separate issue relating to P461 relating
10 specifically to the Brioni transcript. And I don't think --
11 JUDGE ORIE: Then I'm mixing up the transcripts. Perhaps that's
12 what happens if too much comes in. Therefore, it is good if we verify it
13 on the record.
14 Mr. Misetic is always right, Mr. Russo.
15 MR. RUSSO: He is correct, Your Honour. However, the Court is
16 also correct, in fact, we will be objecting to the additional submissions
17 of presidential transcripts by the Gotovina Defence.
18 JUDGE ORIE: I remember that I read something that it is not for
19 the Defence at this moment to add -- to present evidence.
20 Then I invited parties to put properly their positions on the
21 recordings, and we start then, therefore, with exclusively the
22 presidential transcript, not the Brioni one.
23 Mr. Misetic.
24 MR. MISETIC: That's fine although if I could I get copied of the
25 Prosecution if something was sent to Chambers. I don't believe I
1 received an e-mail stating their position so ...
2 JUDGE ORIE: I must admit that I read a lot of e-mails in the
3 early morning, and I might mix them up. I never noticed that we ever
4 were copied on an e-mail which is not addressed to the Defence. Let me
5 make that sure to the extent I may have confused matters, and I think the
6 parties are perfectly aware of the guidelines that if it is relevant, if
7 e-mail exchanges, we have three categories, the first of a purely
8 practical nature, which do not necessarily have to reach the record;
9 second category which is have some impact which will then be put on the
10 record by referring to in a court session; and the third category are
11 those of such impact that they should be filed, officially filed with the
13 I am not aware that the Chamber was not copied on anything that
14 was sent to the Defence. Let me make that clear. If I make a mistake
15 there, then, please, correct me. But it is my understanding that the
16 parties are fully aware of the rules that apply in these kind of e-mail
18 MR. MISETIC: Yes, Mr. President, I was just referring to I
19 believe you made a comment there was some position taken that it's not
20 for the Defence to be putting evidence and I don't recall --
21 JUDGE ORIE: Let me be clear. It could well be that this was
22 comment or interpretation or understanding by the staff when having
23 e-mail exchange with the Chamber that I would not conclude for that
25 MR. RUSSO: Mr. President, we did not submit an e-mail to the
1 Chamber, which was not copied to the Defence, just to be clear.
2 JUDGE ORIE: Yes. Then next step, Mr. Misetic in relation to the
3 presidential transcripts. I think your primary position was they should
4 not be admitted [Overlapping speakers] ...
5 MR. MISETIC: The context is so narrow that it is impossible --
6 it is just taking a sentence and then not putting it in the proper
7 context of the conversation. That's the first point.
8 The second point is I reviewed them myself and the translations
9 on two, if not three of the five, are very poor, and in our view would
10 need to go back and a final version of the translations needs to be done.
11 I specifically object with respect to the transcript with -- that has a
12 comments made by General Gotovina on it as being inaccurately translated.
13 And, therefore, before there is any admission we would ask, if the
14 Chamber decides that it will admitted them, that a revised translations
15 be done and circulated so that we can review them again.
16 With respect to any eventual objection by the Prosecution, our
17 position is that quite simply all of this was left to the last minute to
18 bar table, in effect denying us the opportunity to otherwise tender other
19 relevant material in front of the -- to put in front of the Chamber.
20 It's a direct result of the fact that all of this material is coming in
21 at the end of the case. So if this had this been done at an appropriate
22 time when witnesses still could be called and matters could be put to
23 witness is, of course, always our preference to put matters to witnesses
24 as well. Given that we are put in the position as a result of the late
25 filing by the Prosecution of presidential transcripts, we then wish -- if
1 the Chamber is inclined to admit five excerpts of presidential
2 transcripts that the -- actually they're now two presidential transcripts
3 because we did not realise that the Prosecution has not yet admitted the
4 actual transcript from the 3rd of August where President Tudjman made the
5 decision to launch Operation Storm. We would like that add that one from
6 the 30th of October and two videos in response, and these are things
7 clearly we could have done had the Defence been given proper time and
8 notice of the intention of the Prosecution to tender these exhibits.
9 Thank you.
10 JUDGE ORIE: Thank you, Mr. Misetic. I take it that it was a
11 slip of the tongue where you said that the Prosecution had not admitted
12 yet sought to be admitted.
13 MR. MISETIC: Tendered or -- yes, tendered. I should have said
14 tendered. Thank you.
15 JUDGE ORIE: Mr. Russo.
16 By the way, I meanwhile can confirm that what I referred to
17 earlier was not something sent by the Prosecution. I checked that in my
19 Please proceed.
20 MR. RUSSO: Thank you, Mr. President.
21 First with respect to the presidential transcripts offered by the
22 Prosecution if there is, in fact, a translation issue, we will certainly
23 clear that up. Nevertheless, I don't believe that that should have any
24 impact on admission into evidence. Likewise, I don't believe that the
25 objections with respect to context should bar the admission of the
1 presidential transcripts. The Defence is certainly free to put in any
2 additional portions of those same transcripts which they feel would add
3 context, and we certainly wouldn't object to that, nor would we object to
4 putting in the full content of each of those transcripts; and the Defence
5 can simply do as we have done and refer the Chamber to a particular
6 portions of those transcripts however the Chamber feels is best to
8 There is, however, an objection to admission of additional
9 transcripts by the Gotovina Defence. These clearly not aimed at
10 providing context to different conversations. It is presentation of
11 their affirmative case, which should be done during their own case,
12 simply because we haven't a bar table presidential transcripts at a
13 certain point in time, doesn't entitle the Defence to put in their entire
14 Defence case also by bar table. One of the transcripts they seek to put
15 in is on the 65 ter list, so I don't know that there is an argument that
16 they weren't in some way notified that that might be tendered into
17 evidence. They certainly had the opportunity to put that or any other
18 transcript, which had been disclosed to them to any witness who came into
19 the case who could offer any evidence about it. But is it our position
20 with respect to the two additional transcripts they wish to put in as
21 well as the two videos.
22 JUDGE ORIE: Yes Mr. Misetic.
23 MR. MISETIC: Mr. President, it is simply a question of fairness
24 here. If these transcripts had come in through a live witness, we, in
25 cross-examination, could have challenged the basis for which they were
1 being tendered into evidence which has been put forward as proof of a
3 In cross-examination, we could have put in counter-transcripts to
4 refute the allegation of a JCE; and I see no reason, therefore, that if
5 the Prosecution choosing instead of putting it to a live witness to bar
6 table, that we in effect can have -- if you wish to call it this, a
7 cross-examination bar table by putting in counter-evidence. It is simply
8 a matter of direct and cross-examination.
9 Thank you.
10 JUDGE ORIE: Prosecution has tendered it, therefore, the Defence
11 speaks last. Mr. Cayley, Mr. Mikulicic, anything to add.
12 MR. CAYLEY: Nothing to add, Your Honour. Thank you.
13 JUDGE ORIE: Mr. Mikulicic.
14 MR. MIKULICIC: Nothing to add. We simply joined Mr. Misetic's
16 JUDGE ORIE: Thank you for that.
17 MR. MISETIC: Mr. President, could I ask if we could MFI the
18 Defence bar table submissions?
19 JUDGE ORIE: Yes.
20 Mr. Registrar, the bar table submission in relation to the
21 president transcripts which is not the Brioni one but the others isn't
23 MR. RUSSO: I believe Mr. Misetic is referring to the two
24 additional transcripts and two videos [Overlapping speakers] ...
25 JUDGE ORIE: [Overlapping speakers] ... two additional ones.
1 MR. RUSSO: [Overlapping speakers] ...
2 MR. MISETIC: Three transcripts and two videos, yes.
3 JUDGE ORIE: Three transcripts and two videos.
4 Is the Registrar aware of the document identification.
5 MR. MISETIC: Just sent an e-mail. And I need to correct myself
6 again. Mr. Russo is correct. It is two transcripts and two videos and
7 then a separate issue with P461 which is separate [Overlapping
8 speakers] ...
9 JUDGE ORIE: Mr. Registrar.
10 [Trial Chamber and registrar confer]
11 THE REGISTRAR: Your Honours, document ID 1D00-0084 becomes
12 Exhibit D1450; document ID number 1D00-0885 becomes Exhibit D1451;
13 document ID number 1D00-0887 becomes Exhibit D1452; document ID number
14 1D00-0919 becomes Exhibit D1453; and 65 ter number 3992 becomes
15 Exhibit D1454.
16 JUDGE ORIE: Thank you, Mr. Registrar.
17 Could I just verify the first number was that 1D00-0084 or was it
19 THE REGISTRAR: The first one was 1D00-0084. It was assigned
20 Exhibit D1450.
21 JUDGE ORIE: Yes. The reasons why I'm asking because there seems
22 to be a sequence. It looks like there's a sequence, 84, 85, and 87; and
23 I, therefore, invite the Gotovina Defence to ... [Microphone not
25 So, yes. No mistake has been made from what I understand. D1450
1 up to and including D1454 are marked for identification. The Chamber
2 will decide on admission.
3 Then the next: D568 and Annex A. Yesterday we heard from the
4 parties that there was no objection mutually against admitting both. But
5 B being the legal provisions; and C, which mainly explains why the
6 Prosecution considers portions of D568 to be irrelevant we have not yet
7 heard about that. I invited the parties to whether they could agree on
8 the legal provisions.
9 Any response to that?
10 MR. MARGETTS: Yes, Mr. President, we sent across a revised
11 version of Appendix B to the Defence last night, and we're awaiting a
12 response from them. Effectively that version simply took out the
13 right-hand column of Appendix B where the Prosecution had entered in
14 their assessment of the relevance [indiscernible] the provisions and
15 simply listed the provisions and the content of those provisions. We're
16 content as long as that additional table comes into evidence. We're
17 content of the admission of D568 and Appendix A.
18 JUDGE ORIE: When could we hear whether the parties have
19 agreement on Appendix B.
20 MR. MISETIC: I need --
21 JUDGE ORIE: Annex B.
22 MR. MISETIC: I need to speak to both Mr. Margetts and my team
23 some time during the course of today's session during a break, and then I
24 can take a position on it.
25 JUDGE ORIE: Yes. Then what about C? I think the issue is that
1 Annex A is in response explained why this selection was made, so that's
2 the positive aspect of it. Whereas, in C it is explained why it's
3 removed from what was tendered by the Defence; that is to, explain the
4 reasons why you consider it to be irrelevant.
5 As I said yesterday, this is a bit of an odd system of presenting
6 evidence because it is mixed up with argument, and, of course, C is
7 argumentative; but is there any objection specifically or would Defence
8 consider that it would be better to guess about why the Prosecution has
9 taken out those documents.
10 MR. MISETIC: Yes, we would object to that and it's our position
11 that that is more properly for final argument or a final brief.
12 JUDGE ORIE: We will consider the matter. But, meanwhile, has
13 Annex A been uploaded in e-court?
14 MR. MARGETTS: No, Mr. President, but we will attend to that.
15 JUDGE ORIE: Yes. So that we can decide on admission of D568 and
16 the document still to be assigned a number and that is Annex A.
17 But D568 is admitted into evidence, and we'll hear later this
18 morning about Annex A.
19 Then I would like to briefly deal with the Rajcic bar table
20 submissions. We have received overnight a new version. Is that a
21 corrected version?
22 MR. RUSSO: Yes, Mr. President. One of the category headings had
23 the wrong number. But that's the only distinction between what was sent
24 last night.
25 JUDGE ORIE: So far as substance is concerned, nothing has
2 MR. RUSSO: That's correct.
3 JUDGE ORIE: Having clarified this, we might -- let me just see.
4 We will deal with them later, if we go through the MFI list, but I
5 already put on the record that there seemed to be four categories. That
6 is, to what extent they're linked to the annexes of the Rajcic statement.
7 Annex A being the Official Note of an interview taken from
8 Mr. Rajcic. And as category B, C, and D, the three reports that were
9 prepared by Mr. Rajcic at the request of the Croatian government. When
10 we deal with them, when going through the MFI list, I think we should --
11 we will have to identify them as belonging to which category, A, B, c, or
12 D; A, of course, is quite simple because that is only one document. And
13 then we know that many of them are annexes which were not attached to the
14 analysis or reports themselves, created by Mr. Rajcic, although reference
15 is made to them in these annexes, and the reports are referred to in the
16 statement of Mr. Rajcic. That's one.
17 We further noticed that sometimes they're called annexes in
18 reports; in others they are called attachments. But it appears that
19 whether called annexes or attachments, none of them were attached, and
20 all of them were annexed to the reports, prepared.
21 MR. RUSSO: Mr. President, that's actually not correct. All of
22 them were, in fact, attached to the reports. They were submitted to the
23 Prosecution as attachments as well as to the Chamber as attachments by
24 the government of Croatia
25 attached to those reports in our submission to add the actual reports to
1 the 65 ter list.
2 JUDGE ORIE: Yes. You would say that for internal us because
3 anything that was received by the Chamber in response to the request for
4 assistance, matters that came in addressed to the Prosection and the
5 Chamber, and disclosed to the Defence, of course the Chamber has to be
6 quite honest that time; I didn't even look at it because the Chamber
7 considered it not to be appropriate, apart from just forming an opinion
8 on to what extent it responded to the request but not going into the
9 substance of that material.
10 So the way in which it was presented to the Chamber, there, the
11 annexes or attachments were not attached.
12 We have that now clear on the record. We'll later deal with
13 them, and the parties are invited to deal with them by category and by
14 also indicating what annexes or attachments, to what extent it is a
15 problem, that they were not attached; or to what extent there is not a
17 Then I move on, and we'll revisit the bar table submissions in
18 relation to Mr. Rajcic when we go through the MFI list.
25 [Private session]
11 Pages 17101-17104 redacted. Private session.
8 [Open session]
9 THE REGISTRAR: Your Honours, we're back in open session.
10 JUDGE ORIE: Thank you, Mr. Registrar.
11 Being back in open session, it is put on the public record that
12 the corrected witness statements of Mr. Kardum are admitted into evidence
13 under numbers P2396 and P2397. These are consolidated versions, in which
14 the corrections made by Mr. Kardum, in preparation of his 92 ter
15 statements, are included.
16 Then we move on to our next agenda item. We'll resume with the
18 exhibits, having dealt with the Defence exhibits.
19 MR. MISETIC: Mr. President, if I may correct the record. You
20 were correct, and D1450 is, in fact, document ID number 1D00-0884, for
21 the record.
22 JUDGE ORIE: Yes.
23 Mr. Registrar, does this cause you any problems so that we have
24 the right documents uploaded.
25 [Trial Chamber and registrar confer]
1 JUDGE ORIE: I will not deal at this moment with P1050 up to and
2 including P1118. So the first four we leave apart for a second.
3 Then I move to P1167, P1168, P1174, and I -- in the same series,
4 I will deal with a D exhibit we had not dealt with yet. That was D1212.
5 The Chamber will give its designation on admission on these four
6 documents, and I start with D1212:
7 The Chamber denies the admission of D1212 and requests the
8 Registrar to mark the document not admitted. The Chamber finds that the
9 fact that an article of the New York Times stated in 1999 that, according
10 to an internal report of the Prosecution, the Prosecution then decided
11 during an internal meeting not to include the shelling of Knin in any
12 indictment for whatever reason, does not go to proof of any matter that
13 is to be decided by the Chamber in the present case. Further, the
14 Chamber finds that D1212 does not contribute to the clarification of
15 P1144, the conversation between Tudjman and Cermak on the 23rd of March,
17 I now move to P1167, P1168, and P1174. With regard to these
18 documents, the Chamber considers its order, pursuant to Rule 73 bis,
19 under (D), to reduce the indictment, an order of the 21st of February,
21 The Chamber noted in that order that the proposed reduction of
22 the indictment was based on the understanding that the Prosecution, in
23 relation to Rule 93 (A) of the Rules of Procedure and Evidence, would be
24 permitted to present relevant evidence relating to pattern, intent, or
25 knowledge, and would lead evidence concerning, for example, testimony
1 relating to crimes in charged municipalities that were part of a pattern
2 of events encompassing the uncharged municipalities.
3 The Chamber notes that although most of the observations of the
4 Human Rights Action Teams mentioned in those documents were not made in
5 the Split Military District or the Knin municipality but they were made
6 within Sector South.
7 More specifically, with regard to P1167, and P1168, the Chamber
8 further considers that the observations mentioned in those documents
9 concern, among other things, looting, burning, the conduct of Croatian
10 soldiers, and the conduct of Croatian policemen. The Chamber, therefore,
11 finds that these documents are relevant to a pattern of events relevant
12 to the indictment. The Chamber, of course, will eventually consider the
13 weight to be given to these documents. The Chamber admits P1167, P1168
14 into evidence and requests the Registrar to adjust the status of those
15 documents, accordingly.
16 With regard to P1174, the Chamber considers that the observations
17 made by the Human Rights Action Teams mentioned in that document do
18 relate to one event of two houses that were burned, but that the
19 remainder of the document does not relate to events that are relevant to
20 the indictment. The Chamber, therefore, finds that P1174 is not relevant
21 to a pattern of events relevant to the indictment and does not admit it
22 in evidence.
23 The Chamber requests the Registrar to adjust the status of P1174
24 to marked, not admitted.
25 P1251, expert report of Dr. Clark, either before or after the
1 break I will read the decision the Chamber has reached.
2 The same is true for P1291.
3 And the same is true for P1292.
4 MR. KEHOE: Sorry to interrupt you.
5 JUDGE ORIE: Yes.
6 MR. KEHOE: But I believe P1292 -- I think we just put this as an
8 look at the original diary.
9 JUDGE ORIE: Let me then already look at ...
10 One line in the decision I would read would be at no time did the
11 Defence request additional time to further review the diary or a
12 opportunity to recall the witness.
13 That's part of our decision, but if would you say that you would
14 like to make further submissions.
15 MR. KEHOE: No, no, no, that's fine.
16 JUDGE ORIE: Or to give up any --
17 MR. KEHOE: We did have the diary. It was, of course, in, I
18 believe, in Danish, so it was ...
19 JUDGE ORIE: Yes. Any objections anymore to this document,
20 P1292, because there was also an issue of --
21 MR. KEHOE: No additional objection.
22 JUDGE ORIE: [Overlapping speakers] ... timely disclosure as you
23 remember. No objection?
24 MR. KEHOE: No objection other than previously stated. I did, I
25 think, at one point say we wanted the opportunity to take a look at the
1 diary. We did take that opportunity to look at the writing, and I don't
2 know if we ever put that on the record, but just I wanted to inform the
3 Chamber that we had that opportunity to look at it in hard copy.
4 JUDGE ORIE: Yes. I think you may have said you had an
5 opportunity but in what respect that influenced the position taken.
6 So, therefore, I can already strike P1292 from our MFI list
7 because in the absence of any objections, would that be true for the
8 other Defence teams as well?
9 Nodding yes, two times.
10 Which means that P1292, diary, compiled by Witness 12 -- by
11 Witness 130 is admitted into evidence.
12 Then I come to the Lausic exhibits. We also deal with them by
13 category in conformity with the Prosecution submission, 26th of February.
14 P2210, objections?
15 MR. CAYLEY: Your Honour, you recall the procedural history to
16 this, I'm quite certain. We received the Prosecution's response -- the
17 Prosecution's motion on 26th of February of 2009. We would like some
18 more time to consider the reasons that they give for applying for
19 admission on to the 65 ter list. There are four documents that fall
20 outside that category. But in respect of those which were never on
21 65 ter list, we would like to look at those submissions in more detail.
22 We don't anticipate using the entire period that we're entitled to under
23 the Rules. We would like to make a response within the next couple of
25 JUDGE ORIE: Next couple of day would say be how many?
1 MR. CAYLEY: Two days. At the end of two days we'll make a
2 response to this.
3 JUDGE ORIE: You would say by Friday.
4 MR. CAYLEY: Yes.
5 JUDGE ORIE: The Chamber will consider this request. Well, no
6 it's not a request because usually you would have 14 days, but it is
7 clear now that 14 days is not what you asked for. And whether the two
8 days you are asking for is a reasonable time, the Chamber will consider
9 that and will come back to it --
10 MR. CAYLEY: Thank you.
11 JUDGE ORIE: -- after the break.
12 Now, as far as the other Defence teams are concerned. P2210,
13 Cermak Defence has asked for two days.
14 MR. MIKULICIC: Your Honour, as it regards to the Markac Defence,
15 we have no objections on it.
16 JUDGE ORIE: No objection.
17 Gotovina Defence.
18 MR. MISETIC: I'm just looking to see, was this on the
19 65 ter list?
20 JUDGE ORIE: No. I think it was not, if I'm --
21 MR. MISETIC: Then we ...
22 JUDGE ORIE: One second.
23 [Trial Chamber and legal officer confer]
24 JUDGE ORIE: I think it was only the category D because it was
25 categorised also; categories A, B, C were not on the 65 ter list. Only
1 category D was, and this is a category A document.
2 MR. MISETIC: So category A, which means not on the 65 ter list,
3 therefore, we object on grounds of both that it wasn't on the 65 ter list
4 and as to relevance.
5 JUDGE ORIE: Yes. Now, to keep matters as simple as possible,
6 category A, category B, category C were not on the 65 ter list.
7 May I take it that all documents not -- within the categories A,
8 B, and C, that the Gotovina Defence objects on the basis of it not being
9 on the 65 ter list or do you make a difference between the various --
10 MR. MISETIC: We do make a difference, Your Honour, only because
11 with respect to the daily reports, there are 43 daily reports. We would
12 have tendered them into evidence as Defence exhibits; and, therefore, we
13 have no objection to them coming in and no objection that they weren't on
14 the 65 ter list.
15 JUDGE ORIE: Then we go through them one by one.
16 2210, then objected by the Gotovina Defence; no objections from
17 the Markac Defence; and no position, as yet, from the Cermak Defence.
18 2214 is a category A document as well, analysis of military
19 training and drill in the Split Military District. I'm not addressing
20 Mr. Cayley anymore.
21 MR. MISETIC: The same objection.
22 JUDGE ORIE: Same objection. That is, not on the 65 ter list.
23 MR. MISETIC: Correct.
24 JUDGE ORIE: That's it.
25 MR. MISETIC: Yes.
1 JUDGE ORIE: No additional.
2 MR. MISETIC: That's correct Mr. President.
3 MR. MIKULICIC: Your Honour, sorry to interrupt. If I wasn't
4 clear enough, it is position of Markac Defence when we have no objection
5 with regards to the documents that are on 65 ter list, but to the
6 documents that are not on the 65 ter list, we share the same position as
7 Gotovina Defence.
8 JUDGE ORIE: Yes, that was then a bit confusing.
9 So also for 2210, for the reason that it was not on the 65 ter
10 list, you object against admission --
11 MR. MIKULICIC: That's correct, Your Honour.
12 JUDGE ORIE: -- without further explanation.
13 I think this was a document which was already in the possession,
14 both of them were already in the possession of the Prosecution prior to
15 the 65 ter list. But the significance, as the Prosecution states, only
16 became apparent during the course of trial. That's your position
17 Mr. Russo.
18 Then we move on to another category A document, report by
19 Major Budimir, P2217. It is also a category A document, which was in the
20 possession of the Prosecution prior to submitting the 65 ter list.
21 Mr. Misetic, same position.
22 MR. MISETIC: Same position.
23 JUDGE ORIE: Mr. Mikulicic, same position.
24 Then we move to the next document, which is P2219. This was
25 criminal report filed by the 72nd Military Police Battalion in the case
1 against Mate Modric. This document was not on the 65 ter list, but it
2 was received in November 2008 pursuant to a request for assistance. And
3 the Prosecution has stated that this document is part of a batch which
4 reflects the level and the scope of action undertaken by the military
5 police, and that they are of a same of -- same kind, or same category of
6 documents that were already included on the 65 ter list, and the position
7 of the Prosecution is that since the documents do not introduce new
8 concepts and simply provide a more complete picture of the documents
9 produced during the relevant period, that they would create very little
10 burden to the Defence.
11 Apparently the -- this first of the category B documents, the
12 main difference is that they were received only at a late stage by the
13 Prosecution and were not already in the possession of the Prosecution,
14 when the 65 ter list was submitted.
15 2219, objections.
16 MR. MISETIC: We have no objection on the basis that it was
17 received in November of 2008.
18 MR. MIKULICIC: The same position, Your Honour.
19 JUDGE ORIE: Then we'll wait for the Cermak Defence. If the same
20 would be the same for all category B documents, then I will go through
21 them in a more quick way. That is -- and I do it ...
22 MR. MISETIC: That is indeed our position, Mr. President.
23 JUDGE ORIE: Yes.
24 Then this, the category B documents, are listed under the P
25 numbers: 2220, P2224, P2227, P2228, P2229, P2230, P2231, P2232, P2233,
1 P2237, P2242, P2243, P2244, P2245. These are all category B documents
2 from, if I'm not mistaken.
3 MR. MISETIC: Yes. Just for the record, there are no English
4 translations in e-court for P2242, 2243, 2244, or 2245.
5 JUDGE ORIE: The last four documents without translation, without
6 English translation.
7 Mr. Russo, or Mr. Margetts, any idea how the Chamber would have
8 to read them? These are crime registers for the Sinj, Zadar, Gospic, and
9 Split battalions of the -- no, of the crime registers held there for the
10 72nd Military Police Battalion.
11 MR. RUSSO: Mr. President, we will attempt to have those uploaded
12 today into e-court.
13 JUDGE ORIE: Yes.
14 The status of marked for identification remains as long as the
15 Chamber has not heard in the Cermak.
16 We now move to category C. That is, a batch of documents that
17 were within the Prosecution's possession prior to filing its 65 ter list.
18 However, as the Prosecution states, the reporting chain from the
19 72nd Military Police Battalion to General Gotovina has taken on a
20 heightened significant during the course of trial, and the Prosecution
21 further submits that other documents falling within similar categories to
22 these have been entered into evidence by the Defence during live
23 testimony and through other bar table submissions.
24 Since we have quite a number of category C documents, pages and
25 pages, perhaps it would be good to invite the Prosecution -- the Defence,
1 the Gotovina Defence and the Markac Defence, whether they have a kind of
2 general approach to the category C documents.
3 MR. MISETIC: Mr. President, this is what I was referring to
4 earlier. I, obviously, disagree with the reasoning that these became
5 relevant because of -- or took on heightened significance concerning the
6 reporting chain of the military police. I think it is four pages in the
7 Prosecution's pre-trial brief. Nevertheless, because we would have
8 tendered these documents into evidence ourselves, we have no objection to
9 their admission.
10 JUDGE ORIE: Yes. Markac Defence.
11 MR. MIKULICIC: Neither do we, Your Honour.
12 JUDGE ORIE: That would be for the whole of the category C
14 We will take an earlier break. That is, at this moment. We will
15 continue after the break with the MFI list, and we will deal with some
16 other matters as well. Since we have to discuss a few matters during the
17 break, I would suggest that we have a break until a quarter past 11.00.
18 If however, the Chamber would need five, six, seven minutes more to
19 complete its preparation for the continuation of this morning hearing,
20 then we request the parties for understanding.
21 We'll have a break, and we'll resume at a quarter past 11.00.
22 --- Recess taken at 10.24 a.m.
23 --- On resuming at 11.30 a.m.
24 JUDGE ORIE: We tentatively asked for your understanding, and
25 it's now not tentatively anymore. Thank you for that.
1 We'll first continue with the MFI list. We heard the submissions
2 of the parties on category C, at least the Gotovina Defence,
3 Mr. Mikulicic, I think it was the Markac Defence, that joined. We will
4 still hear from Mr. Cayley.
5 Mr. Cayley, you asked for -- for two days. The Chamber would
6 highly appreciate if you would be able to give -- still to be
7 supplemented, if need be, your position by Thursday noon.
8 Would that be feasible?
9 MR. CAYLEY: Yes, Your Honour, just to be clear about this so
10 that you don't think that we've been remiss. This issue was raised by us
11 on the 29th of January. It is really to the 65 ter, whether it was --
12 because it wasn't on the 65 ter list we advised Prosecution can you
13 please apply for these documents to be, and it didn't take place until
14 17th of February after you reminded the Prosecution. I'm not blaming
15 anybody, but I'm trying to explain to you why we do need a little bit of
16 time; and we're not demanding the full period under Rules, but I do my
17 best to get a response to the Court by noon on Thursday.
18 JUDGE ORIE: Yes. And if you would say it covers only 80 percent
19 we are seen that we have certain categories and if you say, With
20 reservation of our final position in relation to category this and this
21 and this, our position would, in general terms be that, than and that
22 would that would already assist the Chamber in --
23 MR. CAYLEY: Yes, thank you.
24 JUDGE ORIE: I would like to add to that if this would not have
25 been the procedural history, Mr. Cayley, of course, the Chamber would
1 have limited time whereas I said the Chamber would highly appreciate
2 which is, of course, different language which is certainly caused but how
3 we finally reached the point where we are now.
4 MR. CAYLEY: Thank you, Your Honour.
5 JUDGE ORIE: Then for category C we have to put on the record
6 what category C documents are, and I slowly read them again; and looking
7 at our transcriber not envying her what she has to do at this moment.
8 It is P2247; P2254, up to and including P2259; P2262; P2265, up
9 to and including P2275; P2277, up to and including P2281; P2284, up to
10 and including P2287; P2289, up to and including P2300; P2303, up to and
11 including P2310; and P2312. These are all the category C documents to
12 which the Gotovina Defence and Markac Defence have expressed to have no
14 Now, in the 26th of February motion, also four additional
15 documents were tendered which were not on the bar table submissions, and
16 all four are on the 65 ter list. I think we're now talking about
17 category D, which consists of 65 ter 706, which was used during the
18 testimony of Mr. Lausic; 65 ter 1748; 65 ter 330; and 65 ter 7195, which
19 originally was part of 65 ter 3917.
20 The Prosecution has argued that the last three I mentioned are of
21 an identical category to the first one, and of a similar nature to other
22 documents relating to the testimony of Mr. Lausic.
23 These four category D documents, Mr. Misetic.
24 MR. MISETIC: No objection, Mr. President.
25 JUDGE ORIE: No objections.
1 Mr. Mikulicic.
2 MR. MIKULICIC: No objections, Your Honour.
3 MR. CAYLEY: We're not objecting to these documents, Your Honour,
4 because they were on the 65 ter list.
5 JUDGE ORIE: Yes. Then, Mr. Registrar, could you please assign
6 numbers to the documents uploaded under the 65 ter numbers, of the first
7 being 706.
8 THE REGISTRAR: Your Honours, 65 ter number 706 becomes
9 Exhibit P2398; 65 ter number 1748 becomes Exhibit P2399; 65 ter number
10 330 becomes Exhibit P2400. And 65 ter 7195 becomes Exhibit P2401.
11 JUDGE ORIE: P2398 up to and including P2401 are admitted into
13 On our list are still P2314 and P2315, Baccard exhibits. The
14 Chamber will deliver its decision on that in a minute.
15 I now move to P2316. There were objections against paragraphs 14
16 and 15, where references were made by the witness in his statement to the
17 Croatian Helsinki Committee report. Now, the -- from the Chamber
18 understands, we have now a redacted report.
19 Does the objection still stand? That's first -- my first
20 question. Paragraphs 14 and 15?
21 MR. CAYLEY: Mr. Misetic is looking at me. I'm looking at him.
22 We certainly don't have any objections to this document, Your Honour, if
23 you're referring to us.
24 JUDGE ORIE: Yes, it's the witness statement for Witness 140.
25 MR. CAYLEY: No, no objection.
1 JUDGE ORIE: There were objections at the time because reference
2 was made to the report, but that report has been redacted since then --
3 MR. CAYLEY: Exactly.
4 JUDGE ORIE: -- and that's the reason why no objections --
5 MR. CAYLEY: Correct.
6 JUDGE ORIE: -- are sustained. No objections are sustained.
7 Then I have one other question. That is, there was an issue
8 about supplemental information sheets in two different versions. Has
9 that been resolved? There were supplemental informs sheet in relation to
10 Witness Puhovski.
11 If you asked me who raise it. I couldn't tell you.
12 MR. CAYLEY: My understanding is that the one that is uploaded at
13 the moment is the latest one, and we certainly don't have any objections
14 to that.
15 JUDGE ORIE: Yes. And this was uploaded as the proofing sessions
16 P2317. But since there is such a close link to the statement itself, I
17 raise the matter now in relation to P2316.
18 The -- in the absence of any remaining objections, P2316 is
19 admitted into evidence.
20 Then we move to P2317, the note of proofing. I do understand
21 that the uploaded version now meets no objections anymore, and also does
22 not create any confusion anymore. Therefore, P2317 is admitted into
24 Then we move on to P2319. The Chamber has considered the
25 submissions made in respect of the admissibility of the interview with
1 Petar Mrkalj in the Feral Tribune, and the Chamber has decided, having
2 considered the submissions, to admit P2319 into evidence.
3 We now move to the next series we already briefly discussed
4 before the break and that those are the -- if I could call them the
5 Rajcic exhibits.
6 I think I earlier indicated that we have four categories. The
7 first is Appendix A to the statement, which is the Official Note, which
8 is a category in itself. Then we have the Appendices B, C, and D: The
9 reports prepared by Mr. Rajcic at the request of the Croatia government
10 with annexes, annexes that -- or attachments, the formulation differs,
11 depending on which appendix we're talking about, the appendices
12 apparently attached and -- to the originals and disclosed to the Defence
13 when these originals were received but not attached in the motion in
14 relation to the admission into evidence of documents related to
15 Mr. Rajcic, his statement.
16 MR. RUSSO: Yes, Mr. President, I wasn't certain if the Court --
17 I'm not sure what MFI
18 documents that we have on our sheet beginning with P2322, all the way to
19 P2349, these were the documents which were actually put to Mr. Rajcic
20 during the course of his testimony and were MFI'd at that time and are
21 distinct from those being offered by category in the spreadsheet as bar
22 table submissions.
23 JUDGE ORIE: Yes. Though I raised the issue as I did, because
24 they're all in one way or another related to the -- to the reports
25 prepared by Mr. Rajcic, but not then --
1 MR. RUSSO: There are a few documents Mr. President, which were
2 not --
3 JUDGE ORIE: Then we'll go through them one by one.
4 P -- and I invite the Defence to make clear whether the objection
5 is against not being attached to the -- whether it's late filing, whether
6 it's not being attached to the reports that were attached to the
7 statement, or whether there's any other specific reason for the Chamber
8 to consider. The first two categories could be just briefly mentioned,
9 if you want to explain in more detail that does not need to be repeated
10 for every individual document.
11 MR. KEHOE: May I just add one other point in that regard.
12 There are actually more than the two operative dates when the OTP
13 received it and when it was disclosed. The more important one for me
14 being a non-speaker is when it was translated. And you will see in at
15 least --
16 JUDGE ORIE: Yes. Well, Mr. Kehoe, to say that you're not
17 speaker, sounds --
18 MR. KEHOE: A Croatian speaker.
19 JUDGE ORIE: A Croatian speaker, yes that's how I understood your
21 MR. KEHOE: Yes, so -- that -- that of course, is the operative
22 date as far as the Gotovina Defence is concerned, what I was able to work
23 with in my preparation not when disclosed in Croatian.
24 JUDGE ORIE: I see your point and it is taken, and forgive me for
25 listening to the -- to the second --
1 MR. KEHOE: [Microphone not activated]
2 JUDGE ORIE: -- of what you said instead of listening what your
3 real message was.
4 We go through them one by one: P2322. Objections?
5 MR. KEHOE: It's the objection of late disclosure and not on the
6 65 ter list.
7 JUDGE ORIE: Other Defence teams.
8 MR. CAYLEY: Not objecting, Your Honour no.
9 MR. MIKULICIC: Neither do we.
10 JUDGE ORIE: Then the next one, P2323.
11 MR. KEHOE: This objection, Mr. President, is that this is the
12 Official Note that Mr. Rajcic laboriously went through. The fact of the
13 matter is it is not what he said, and its probative value is, I believe
14 in this case, virtually nothing. His comments in that regard are on the
15 transcript. So this wasn't his statement. He wasn't shown it prior to
16 his discussion with Mr. Russo in court. He never signed it. It is
17 simply of no probative value.
18 JUDGE ORIE: Yes. It is -- it's a category in its own.
19 MR. KEHOE: Yes.
20 JUDGE ORIE: Yes.
21 Mr. Russo.
22 MR. RUSSO: If I could, Mr. President, simply a brief response.
23 The witness did, in fact, go through as the Court will recall the
24 portions of the Official Note which he did not adopt. However, I do have
25 to state our position that, in fact, there are other portions which he
1 did not correct, which we will be relying on and which were, in fact, the
2 portions we intended to rely upon which he simply didn't deny.
3 So I would submit to the Court having not corrected those, he has
4 adopted them.
5 MR. KEHOE: Mr. President, one final note on this score and I
6 don't want to go back and forth.
7 This Official Note was not even on the date -- he noted it wasn't
8 even on the indicate that was recorded by this note-taker. This
9 note-taker didn't even have his date of birth and his place of birth
10 correct. I think if the Chamber is going to consider anything, just
11 consider the transcript of exactly what he said. This is really of no
12 value whatsoever.
13 This -- and this document again is one of those documents that is
14 done at the behest of the OTP who is doing their investigations or the
15 Chamber, and then they come in and they use this against the -- the
16 Prosecution. I mean it's, again, not only unique in its category that
17 this is in his statement, but it is unique in how it was created.
18 JUDGE ORIE: Could I just seek clarification. You said who is
19 doing the OTP, who is doing their investigations or the Chamber.
20 What did you exactly mean by that?
21 MR. KEHOE: Well, in some fashion, the Office of the Prosecutor,
22 pursuant to -- actually the Chamber and pursuant to a request --
23 JUDGE ORIE: Let me perhaps -- you referred to it - just for me
24 to understand what you meant - you referred to let's say the whole
25 54 bis.
1 MR. KEHOE: Yes, Mr. President.
2 JUDGE ORIE: Okay then it's clear to me what role you had in
3 mind --
4 MR. KEHOE: [Overlapping speakers] ...
5 JUDGE ORIE: -- for the Chamber in this respect, and -- yes. Now,
6 it is now clear.
7 MR. KEHOE: And my last point. If there was confirmation that
8 this was accurate, certainly the Office of the Prosecutor had the
9 opportunity to call the transcriber and say that. We had the person who
10 is here saying, This was not accurate in any number of forms. I believe
11 that I went through his transcript and it was pages and pages,
12 Mr. President of inaccuracies in this document to render it virtually
14 JUDGE ORIE: Thank you for that.
15 MR. RUSSO: Mr. President, I if could simply add that to rely
16 specifically only on the transcript I have to, state Mr. President, we
17 did not take him through the portions that he did not object to on the
18 transcript. So if you look at only the transcript, you won't see the
19 portions that he did not object to in that statement.
20 JUDGE ORIE: Mr. Kehoe, you have the last -- I mean you're the
21 one who is responding, so I give you an opportunity to --
22 MR. KEHOE: Mr. President, I think you understood my point. I
23 mean I think that this document is virtually useless to the Chamber.
24 JUDGE ORIE: Yes. Then we move on to P2324.
25 MR. KEHOE: This is a similar document, Mr. President. It was
1 late disclosure. This document was not on the 92 -- the 65 ter list, and
2 I believe this is one of those documents that we received the translation
3 of several days before Mr. Rajcic actually testified.
4 JUDGE ORIE: Yes. And which was received by the Prosecution as
5 far as I understand in January 2009.
6 Is that ...
7 MR. RUSSO: That's correct, Mr. President.
8 JUDGE ORIE: Thank you.
9 We move on to 2326.
10 MR. KEHOE: Same objection, Mr. President.
11 JUDGE ORIE: I didn't hear you.
12 MR. KEHOE: [Microphone not activated] ... non-65 ter, late
13 disclosure and late translation.
14 JUDGE ORIE: Yes. Other Defence teams.
15 MR. CAYLEY: No objection, Your Honour.
16 JUDGE ORIE: Mr. Mikulicic.
17 MR. MIKULICIC: Your Honour, I mean basically we are supporting
18 the objections of the Gotovina Defence, but as it not relates to our
19 Defence we have no specific position on that.
20 JUDGE ORIE: Yes. And, as a matter of fact, I think have
21 forgotten to ask your views on 2323.
22 MR. MIKULICIC: It's the very same.
23 JUDGE ORIE: Very same. You join the Gotovina objections.
24 MR. MIKULICIC: We do, Your Honour.
25 JUDGE ORIE: Mr. Cayley.
1 MR. CAYLEY: We have the same position on 2323. No objection,
2 Your Honour.
3 JUDGE ORIE: No objection. So, in order have no confusion,
4 Mr. Mikulicic, you joined the Gotovina objections and Mr. Cayley has no
5 objections against 2323.
6 I think on 2324 I did not seek your position, the issue being
7 late filing -- late disclosure, late translation, late submission.
8 MR. MIKULICIC: Your Honour, we hold the same position as
9 Mr. Kehoe just expressed. So we are objecting. We are objecting to the
10 late disclosure and no translation issue.
11 JUDGE ORIE: Mr. Cayley on 2324.
12 MR. CAYLEY: No objection, Your Honour.
13 JUDGE ORIE: Mr. Cayley, could we if you have an objection would
14 you actively and spontaneously rise to your feet and otherwise if not
15 expressed the Chamber will assume there are no objections from the
16 Cermak Defence.
17 MR. CAYLEY: Of course, Your Honour. Thank you.
18 JUDGE ORIE: Then --
19 MR. KEHOE: Mr. President, might I just add one more time on to
20 P2326 that I failed.
21 JUDGE ORIE: Yes.
22 MR. KEHOE: I went back to the -- my original records during the
23 course of this, in addition to late disclosure, late translation
24 everything that I talked about before, it was not even on the Exhibit
25 list that was presented to us the day before Mr. Rajcic was to testify.
1 That is P2326. There is some other exhibits I will note in that regard,
2 but it wasn't on the list.
3 JUDGE ORIE: Yes. I would call that a category on no list even
4 not during the time of testimony.
5 MR. KEHOE: Yes.
6 JUDGE ORIE: Mr. Mikulicic, could have I the following
7 arrangement with you, if you want to add anything to what Mr. Kehoe
8 submits, you spontaneously rise. If not, the Chamber assumes that you
9 are joining his objections.
10 MR. MIKULICIC: Yes, Your Honour, that's correct.
11 JUDGE ORIE: Then P2338, Mr. Kehoe.
12 MR. KEHOE: That is the same objection, Judge. I can't argue
13 with translation because I believe this is an Ivancica map which had
14 circles on it. I believe there was some portion that was translated. It
15 was minimal and it was over in a box. It wasn't like the other
16 documents; but nevertheless, we still had the translated -- excuse me,
17 the non-65 ter listing, and I incorporate the non-65 list in the failure
18 to include that in the motion to put it on there, that was presented to
19 the Chamber back in December, by the Chamber in February said that
20 because of the few documents that were a part of this request, Your
21 Honour let it in with the four documents, but that is likewise not on
22 that motion either.
23 JUDGE ORIE: Yes. P2340. Mr. Kehoe.
24 MR. KEHOE: Same. Same objection.
25 JUDGE ORIE: Same objection.
1 MR. RUSSO: Mr. President --
2 JUDGE ORIE: There seems to be a bit of confusion there.
3 MR. RUSSO: Mr. President --
4 JUDGE ORIE: An issue about 65 ter 7064 and 7065; that is P2340
5 and P2341. What needs to be done is to agree on whether the 65 ter
6 numbers are the correct ones. There may have been some confusion about
7 what was uploaded on 2340 and 2341.
8 MR. RUSSO: I'm not certain what that confusion is,
9 Mr. President. However, P2340 was on the 65 ter list. That was one of
10 the documents submitted in our motion and Trial Chamber granted the
11 addition of that document to the 65 ter list. I believe I recall during
12 the course of the testimony that there was a concern about the
13 translation for that document, either having been disclosed or the fact
14 that it was -- I believe -- believed to be different than the one
15 submitted in our motion. However, I haven't heard nothing more about
16 that. I don't believe there is any issue with respect to the translation
17 of that document. This is one for which the original and the translation
18 were submitted in our motion to add.
19 JUDGE ORIE: Yes. I have, as a matter of fact, on my list and,
20 of course, you'll understand that I have not all the transcripts and all
21 the submissions ready, but that there would be no objection by the
22 Defence on 2340.
23 MR. KEHOE: I stand corrected on that score that. That was part
24 of that initial list. I stand corrected. Counsel is 100 percent right.
25 JUDGE ORIE: No objection.
1 MR. KEHOE: Yes, no objection.
2 JUDGE ORIE: Mr. Mikulicic, now I want to check very carefully
3 whether you also join the Gotovina Defence.
4 P2340 is admitted into evidence.
5 Could I invite the parties to perhaps verify that P2340 is really
6 the document that was intended.
7 MR. RUSSO: I have verified that, Your Honour. It is.
8 JUDGE ORIE: It is. Fine. Then we move on to P2341.
9 MR. KEHOE: [Microphone not activated] ... Mr. President this
10 is -- this document does not appear to have been on the 65 ter list nor
11 part of the motion, and there is late disclosure in the translation, so
12 we object on that score.
13 JUDGE ORIE: We then move on to P2342.
14 MR. KEHOE: Same objection for P2342, Mr. President.
15 JUDGE ORIE: Thank you.
16 We move on, P2343.
17 MR. KEHOE: Same objection, Mr. President.
18 JUDGE ORIE: Yes.
19 Mr. Russo, it goes without saying that if the objection -- if you
20 want to reply to that, that you will rise to your feet.
21 P2344. I think this one was added to the 65 ter list prior to
22 the testimony of the witness.
23 Is that --
24 MR. KEHOE: I believe it was on some time ago, Mr. President, if
25 I'm not mistaken. It's got a relatively low 65 ter list -- number with
1 397 that tells us, I think, that it has been on there for a while, so the
2 objection on that score is now -- on the non-65 ter list is not present,
3 happens to do with late disclosure when, in fact, it was going to be told
4 to be used -- that told us that it was going to be used.
5 JUDGE ORIE: Yes, so that is objection of a similar kind but not
6 exactly the same.
7 Then we move on to -- yes, the next one is P2345 which comes a
8 bit as a surprise in the middle of this because it is not a Rajcic
9 document. But I follow the sequence in the order.
10 I think that -- and we earlier discussed that already that a new
11 redacted the version has been uploaded, and that it is this version that
12 should replace the original of P2345, and at least, Mr. Cayley, you have
13 no objections would that be -- that it would be true for the other
15 MR. CAYLEY: That's right, Your Honour.
16 JUDGE ORIE: Thank you. Then P2345, in its redacted version, as
17 now uploaded. Mr. Registrar, could you confirm that it is the redacted
18 version that is now in the e-court system?
19 [Trial Chamber and registrar confer]
20 JUDGE ORIE: It will be verified whether we have the correct
21 version in e-court or whether it's a separate document which should
22 replace 2345.
23 Mr. Russo, could you further inform us.
24 MR. RUSSO: Yes, Mr. President. The redacted version is actually
25 65 ter 4688.
1 JUDGE ORIE: 4688.
2 Mr. Registrar, could you give us a provision confirmation of 65
3 ter 4688?
4 [Trial Chamber and registrar confer]
5 JUDGE ORIE: The -- P2345 was tendered, was then marked for
6 identification, and is now receiving the status of marked, not admitted;
7 whereas, 65 ter 4688, the redacted version, Mr. Registrar will
8 receive ...
9 THE REGISTRAR: Exhibit P2402, Your Honours.
10 JUDGE ORIE: P2402 is admitted into evidence.
11 We are back now in the Rajcic series.
13 MR. KEHOE: Yes, Mr. President, this is not on the 65 ter list,
14 late translation, late disclosure by the Prosecution.
15 JUDGE ORIE: Thank you. P23 --
16 MR. RUSSO: Mr. President, I'm sorry to interject.
17 With respect to P2346, as well as the next one, P2347 these were
18 both originally submitted by the Prosecution in the HV artillery bar
19 table document motion which was denied in December. We had disclosed
20 translations prior to that time.
21 MR. KEHOE: If I may, Mr. President I look at the list that was
22 provided by the Office of the Prosecutor to us where they italicise the
23 documents that were not on the 65 ter lists, and they have italicised
24 both 65 ter 6130 and 65 ter 6142. So I take it from there, what they
25 gave us because they distinguished between italicised being not on the
1 65 ter list and just non-italicised being on the 65 ter list and both of
2 these numbers are in fact italicised.
3 JUDGE ORIE: Do I understand that this is it a mistake and that
4 although they were tendered --
5 MR. RUSSO: Mr. President, it is not a mistake. The italicised
6 does indicate that they were never formally permitted on to the 65 ter
7 list. Those were provisional numbers assigned at the time we moved
8 during the HV artillery bar table document motions to pet them in. I
9 believe they are of a different character from the attachments to the
10 reports which were never formally submitted by motion.
11 JUDGE ORIE: So although they never appeared on the -- never were
12 admitted to the -- added to the 65 ter list, that at least they were
13 already submitted in a different context at an earlier stage, and you
14 like to draw the attention to that, and ask -- invite Mr. Kehoe to see
15 whether that in any way changes his position.
16 MR. KEHOE: Just add one other things on that score,
17 Mr. President. Obviously as Your Honour just said they never asked to
18 put on the 65 ter list, but these documents we received back in May of
19 2007. So that disclosure date with regard to these documents goes way
20 back. I mean, disclosure on some of these documents is late, but these
21 ones are really late.
22 MR. RUSSO: Again, Mr. President, we did formally move to add
23 them to the 65 ter list in our filed motion for admission of HV artillery
24 bar table document motions. They were sought to be added at that time.
25 JUDGE ORIE: And at that time exactly means when?
1 MR. RUSSO: I believe the motion was filed in October.
2 JUDGE ORIE: Yes. So what Mr. Kehoe apparently says is you are
3 emphasising that you sought already to have it admitted to the 65 ter
4 list in October; whereas Mr. Kehoe emphasises the delay between receiving
5 the document and your efforts to have it on the 65 ter list.
6 Is that well understood?
7 MR. KEHOE: Yes, Mr. President.
8 JUDGE ORIE: The same is true for 2347, I think; is that correct?
9 MR. KEHOE: Yes.
10 MR. RUSSO: Yes, Mr. President.
11 JUDGE ORIE: Same objection, Mr. Kehoe?
12 MR. KEHOE: Yes, Mr. President.
13 JUDGE ORIE: P2348.
14 MR. KEHOE: This goes back to the prior --
15 JUDGE ORIE: Late disclosure, late translation --
16 MR. KEHOE: Yes.
17 JUDGE ORIE: Late addition to 65 ter list.
18 MR. KEHOE: But not the statement that I made previously that
19 they got it as far back as May 2007.
20 JUDGE ORIE: No. So to that extent, 2346 and 2347 are a category
21 within a category. Yes.
22 Then we move on to P2349.
23 MR. KEHOE: That's the same objection as just articulated.
24 That's non-65 ter, late disclosure, late translation.
25 JUDGE ORIE: Yes.
1 We then move on to 23 -- let me just have a look.
2 Yes, the next one is P2355, which is not a Rajcic. We'll deal
3 with that. We'll deal with this document in our decision still to be
4 rendered on -- the decision on the Prosecution's motion for admission
5 into evidence of the statements of the accused Cermak and Markac and
6 associated exhibits. So, therefore, this remains on the list for the
7 time being.
8 Then the next one is P2356. For whatever reason, this document,
9 which was shown to the witness Kardum was never tendered, and I do
10 understand that Mr. Hedaraly now seeks to correct this failure; and I
11 would like to know whether there is any objection from Defence.
12 MR. MISETIC: No objections.
13 MR. CAYLEY: No objection, Your Honour.
14 JUDGE ORIE: Mr. Mikulicic is nodding that he joins the "no
15 objections" positions taken by the other Defence counsel.
16 The same would, by the way would be true for 2357. I look at
17 Defence counsel whether they take the same position that it is a
18 correction of the failure to earlier tender them.
19 I see that all three Defence counsel agree, which means that
20 P2356 is admitted into evidence, though under seal; and P2357 is also is
21 admitted into evidence.
22 Mr. Registrar, on the basis of the history, there's no need to
23 have it -- this one admitted under seal. That is confirmed.
24 MR. MARGETTS: Mr. President, I'm not sure of the basis for 2356
25 being under seal either. Our submission is that's not necessary.
1 JUDGE ORIE: Then we'll verify this. I relied in this respect on
2 the information provided to me by the Registry. We'll check in the
3 transcript what the reason is.
4 Unless, Mr. Registrar, you could inform us right away. If need
5 be, in private session.
6 [Trial Chamber and registrar confer]
7 JUDGE ORIE: It is the information stored in the system. We'll
8 verify that. If the information turns out to be wrong, then, of course,
9 it will be corrected.
10 We are at 2361. If is already on the record, and this is the
11 audio of the 1998 interview with Witness 82. Although it is already on
12 the record then I said in court:
13 "I want you to be aware, Mr. Hedaraly, that the Chamber has
14 decided, in relation to the audio tendered that it is that the admission
15 is denied. I just want you to know it now and not at any later stage."
16 Whether this could be considered as a decision to not admit is
17 not worth of any debate. It is now clear that P2361 is not admitted into
19 Exceptionally the Registry made a mistake in relation to P2356.
20 There's no reason to have it admitted under seal, and it is, therefore, a
21 public document.
22 The last documents - I'll deal with them soon - are the exhibits
23 linked to the Prosecution's 10th of February motion to admit 28 documents
24 and a videotape into evidence, and to add seven documents and video-taped
25 Prosecution's 65 ter list. I will deal with them in a minute.
1 Mr. Misetic, or Mr. Kehoe, we went now through the MFI list, not
2 everything has been resolved but almost everything, or ready for a
3 decision by the Chamber.
4 The bar table submissions you made in relation to the witnesses
5 Roberts, Lausic and Puhovski were all admitted into evidence on the
6 24th of February, 2009. These are the D numbers: D1344 up to and
7 including 1354; and D1356 up to and including D1424.
8 We have invited you to identify within a week the areas that you
9 would like the Chamber to focus on. I think that we have not received
10 any submissions in this respect.
11 MR. MISETIC: Unfortunately, Your Honour, in the wave of material
12 we've been going through, that fell through the cracks, so I will get
13 that done this afternoon and let you know in the morning.
14 JUDGE ORIE: Thank you -- thank you, Mr. Misetic.
15 Then finally we have the issue of binder of 31 maps, of which one
16 of these maps is already in evidence; that's number 27 which is admitted
17 into evidence as P62 and has been on our screen often since then: The
18 aerial photograph. I think the Chamber invited the parties to agree on
19 admission of these maps. What is the present status?
20 MR. MARGETTS: Mr. President, we've met and have agreed, and we
21 have 65 ter numbers for each of the outstanding maps.
22 JUDGE ORIE: Yes. And they have been ... so that means that we
23 have a list of 30 [indiscernible].
24 MR. MARGETTS: Yes, Mr. President, they have been uploaded into
1 JUDGE ORIE: Mr. Registrar, no exhibit numbers have been assigned
2 yet, provisionally may I invite you to do so at your earliest
4 Then I think we went through the MFI list.
5 MR. RUSSO: Mr. President, we haven't assigned MFI numbers to the
6 Rajcic bar table document categories.
7 JUDGE ORIE: Yes. Mr. Registrar, the Rajcic bar table documents
8 were --
9 MR. RUSSO: Yes, those were sent in a spreadsheet yesterday, as
10 well as a correction this morning.
11 JUDGE ORIE: Yes, I remember -- oh, that's the correction where
12 you earlier explained what the correction actually was, and these are
13 grouped along to the A, B, C, or D category, one document in the A
14 category only, that's the --
15 MR. RUSSO: Actually, there is no A category in that spreadsheet.
16 It only contains B, C, and D categories.
17 JUDGE ORIE: Only the B, C and D categories.
18 [Trial Chamber and registrar confer]
19 JUDGE ORIE: I do understand that there's an outstanding
20 invitation to verify whether the 65 ter numbers are correct, Mr. Russo.
21 MR. RUSSO: Yes, Mr. President, we have verified they are
23 JUDGE ORIE: Yes. Then, Mr. Registrar, once he has -- I do
24 understand that he has now received this information, and he'll proceed
25 assigning numbers to these documents.
1 Then we have gone through our MFI list.
2 Mr. Misetic, wasn't it that on the motion to have two
3 investigative steps documents admitted that you would still make
4 submissions. You will have an opportunity to do so.
5 MR. MISETIC: Yes, we have no objection, Mr. President.
6 JUDGE ORIE: No objections to the -- these lists. I think we
7 received from the other Defence teams their positions. We'll consider
8 the matter.
9 I would like now to deliver the Chamber's decision on
10 Prosecution's motion to admit 11 kill ing-related documents into evidence
11 and to add three documents to the Prosecution's exhibit list, a motion
12 that was filed on the 25th of February, 2009:
13 The Chamber denies the motion in its entirety. The filing of
14 this motion so late in the Prosecution's case forced the Chamber to
15 carefully balance various elements, particularly the following: That the
16 Prosecution's last witness finished testifying yesterday, the 3rd of
17 March, 2009, one week after the filing of the motion.
18 On what date the Prosecution claimed to have come into possession
19 of the material, to the extent that such information was provided, when
20 the documents had been added to the Prosecution's Rule 65 ter exhibit
21 list, if at all; whether the documents could have been tendered earlier;
22 the volume of the material tendered; to what extent the proposed exhibits
23 were repetitious of other material in evidence; whether it would be
24 unfair to the Prosecution to proceed without admitting them into
25 evidence; whether the Defence was given a fair chance to respond to the
1 motion; and whether the material was appropriately tendered in a bar
2 table submission, in light of the Chamber's previous guidance on this
4 This balancing exercise resulted in the decision to deny the
5 motion in its entirety.
6 The Chamber has decided to granted the motion to admit 28
7 documents and the -- and a video into evidence, and the reasons for this
8 decision will follow. It depends on whether we'll have a session on the
9 coming days or whether we'll not have a session, which may be of
10 influence on whether the reason will be given orally or in writing.
11 Then I would like to, as announced earlier this morning, I would
12 like to give the reasons for the denial of admission into evidence of
13 D1439. As the parties may remember, the decision yesterday, the wrong
14 decision, but today corrected, was given this morning. These are these
15 reasons not to admit Exhibit D1439.
16 The Defence tendered D1439 primarily for the purpose of
17 corroborating evidence given by Witness 82 in his testimony, regarding
18 the witness's denial of the truthfulness of a newspaper interview. That
19 newspaper interview was not tendered and, therefore, not admitted into
21 As the statement at issue here was not taken for the purposes of
22 those proceedings, it fell outside the provisions of Rule 92 ter of the
23 Rules. Therefore, the Chamber considered whether, under Rule 89(C), the
24 statement had sufficient probative value that it could be considered for
25 admission. The Chamber found that D1439 lacked sufficient probative
1 value for admission into evidence and that it was being tendered
2 primarily in order to provide corroboration with respect to statements
3 made by the witness in his testimony about an item, not admitted into
4 evidence, the newspaper interview.
5 The Chamber further found that, in any event, such corroborating
6 evidence was unnecessary, in light of the testimony of the witness
7 already given on the issue, and also found that in other respects, D1439
8 lacked sufficient probative value for the Chamber to exercise its
9 discretion under Rule 89 (C) to allow its admission into evidence.
10 And this concludes the Chamber's reasons.
11 D1447 is apparently already marked as admitted into evidence,
12 although it was MFI
13 does not preclude the parties from considering procedural consequences of
14 admission into evidence.
15 Then the Chamber wants to deliver its decision on the admission
16 of the expert report of Dr. Eric Baccard, which is MFI'd under P2314 and
17 a decision on the Markac Defence motion not to admit certain parts of the
18 first expert report.
19 On the 28th of April, 2008, the Prosecution submitted two expert
20 reports of Eric Baccard, pursuant to Rule 94 bis of the Tribunal's Rules
21 of Procedure and Evidence.
22 On the 26th of May, the Gotovina Defence filed a notice under
23 Rule 94 bis, in which it challenged the relevance of the reports, arguing
24 that Eric Baccard did not perform the autopsies of the victims exhumed
25 from sites in Korenica, Gracac, and Knin.
1 On the 4th of February 2009, the Markac Defence filed a motion in
2 which it requested the Chamber not to admit section 5.1 of the first
3 report, arguing that the alleged killings contained in that section
4 concern Korenica and fall outside the territorial scope of the
6 On the 4th of February, 2009, the Prosecution tendered a redacted
7 version of the first report, dated 6th of June, 2003, into evidence; and
8 it was marked for identification as P2314.
9 The general standards of admissibility set forth in Rule 89 of
10 the Rules apply to expert reports. 89 (C) of the Rules provides that a
11 Chamber may admit any relevant evidence which it deems to have probative
12 value. For a proposed expert report to be probative, the author should
13 qualify as an expert in its subject matter, and the content of the expert
14 report should fall within the accepted expertise of the witness. An
15 expert is a person who, by virtue of some specialised knowledge, skill,
16 or training can assist the trier of fact to understand or determine an
17 issue in dispute.
18 The Chamber notes that the expert status of the witness as such
19 was not disputed by the Defence. On the basis of the redacted first
20 expert report and the information on Eric Baccard's education and
21 experience contained therein, and in P2313, the Chamber is satisfied that
22 Eric Baccard qualifies as an expert in forensic pathology.
23 The redacted first expert report comprises Eric Baccard's
24 analysis of autopsy reports of bodies exhumed in 2002 from a site in
25 Gracac, prepared by eight forensic pathologists.
1 The Chamber finds that the matters addressed in the expert report
2 are relevant to the indictment, in particular to the alleged murders
3 charged as crime against humanity in Counts 1 and 6, and as violations of
4 the laws and customs of war in Count 7.
5 The Chamber further finds that the fact that Eric Baccard did not
6 perform himself these autopsies does not affect the relevance of his
7 expert report. The Chamber notes in particular that Eric Baccard was a
8 member of the forensic monitoring team that attended, observed, and
9 discussed the findings of the individual autopsy reports as indicated on
10 transcript pages 15.748 through 15.751. When drafting his report, he had
11 available to him the autopsy reports, his notes prepared at the various
12 stages of the forensic examinations, and pictures of X-rays as shown on
13 transcript pages 15.755 and onwards. The content of the report stays
14 within the forensic pathological expertise of Eric Baccard.
15 The Chamber further finds that the Markac Defence motion to
16 exclude section 5.1 of the first expert report relating to bodies exhumed
17 in Korenica has become moot since this section has been entirely redacted
18 in the redacted version of the first expert report that was tendered by
19 the Prosecution.
20 Having read the report and considered the testimony of
21 Eric Baccard, the Chamber finds that the redacted first expert report
22 assists the Chamber in the understanding of the underlying forensic
23 material. The Chamber, therefore, deems the report to have probative
24 value. The Chamber is thus satisfied that it meets the requirements for
25 admission set out in Rule 89 (C) of the Rules and the jurisprudence of
1 the Tribunal.
2 The Chamber, therefore, admits P2314, the redacted first expert
3 report of Eric Baccard, into evidence. The Chamber also admits P2315,
4 which is a signed list of autopsy reports that were available to
5 Eric Baccard when he was preparing his expert report.
6 And this concludes the Chamber's decision on the admission of the
7 expert report of Eric Baccard and its decision on the Markac Defence
8 motion not to admit certain parts of that report.
9 Mr. Russo or Mr. Margetts, Annex A has been uploaded, meanwhile
10 that is D568 but then the other side of the scales --
11 MR. MISETIC: Mr. President.
12 JUDGE ORIE: Yes.
13 MR. MISETIC: We have an issue with --
14 JUDGE ORIE: P461.
15 MR. MISETIC: No with Appendix A or Annex A which, we're still
16 trying to resolve. The Prosecution --
17 MR. MARGETTS: Yes, Mr. Misetic and I have just discussed a
18 portion of Appendix A. There is about 20 entries that we're currently
19 resolving an issue of the locality of the crimes committed, and so we
20 should be able to resolve that very shortly.
21 JUDGE ORIE: Yes. I take it not before the break? Perhaps after
22 the break.
23 MR. MARGETTS: We're in the hands of the Defence on that.
24 MR. MISETIC: We're in the hands of the Prosecution.
25 JUDGE ORIE: You're keeping each other hostage I do understand.
1 MR. MISETIC: It is possible that Mr. Margetts hasn't received my
2 last e-mail. The issue is whether certain localities do or don't fall
3 within the indictment area. In my last message to Mr. Margetts was that
4 the villages are specifically identified in the indictment, so I would
5 argue that they are in the indictment area --
6 JUDGE ORIE: Let's -- the Chamber will --
7 THE INTERPRETER: Kindly switch off all unnecessary microphone.
8 It is impossible to hear the speakers.
9 JUDGE ORIE: Yes. I should have read it already. I also back
10 for understanding that I would have to switch on and off my microphone
11 very often and I have no -- some of the parties have no one sitting next
12 to them to assist them in that difficult job.
13 Therefore, the D568 is now in evidence, and we will wait and see
14 what will be the result on Appendix B the provisions of the Croatian
15 Criminal Code.
16 Any agreement on that already?
17 MR. MISETIC: Yes, Mr. President, we have no objection.
18 JUDGE ORIE: No objection to the admission of Appendix B.
19 MR. MISETIC: [Microphone not activated]
20 JUDGE ORIE: Annex B, has it been uploaded?
21 MR. MARGETTS: Mr. President, we are working on and we have not
22 uploaded it as yet.
23 JUDGE ORIE: It seem that it is not easy to get rid of D568 and
24 annexes A B and C.
25 The Chamber was informed that the Gotovina Defence would like to
1 raise an issue in relation to P461.
2 MR. MISETIC: One moment, Mr. President.
3 JUDGE ORIE: From what we understand, it ask a cover page to a
4 audio taped conversation, a transcript of an audio taped conversation.
5 MR. MISETIC: Mr. President, it has now been admit as D1453 this
6 morning. I'm sorry, it's MFI
7 The issue is that with these presidential transcripts, there is
8 typically a cover page which identifies who was present at the meeting
9 along with the date and time of the meeting. With P461, we received from
10 the Prosecution the cover page along with a translation but it was not
11 uploaded into P461. This only became relevant because of the examination
12 of Mr. Rajcic, and the issue is now whether he was or wasn't present.
13 The relevance of the cover page is that the cover page does not indicate
14 that he was present. So we asked the Prosecution to upload the cover
15 page. They've indicated that they did not wish to do so, and I note that
16 the exhibit has now been MFI
17 have it as a Defence exhibit or attached as part of the P461 is of no
18 consequence to us.
19 JUDGE ORIE: Mr. Russo.
20 MR. RUSSO: Yes, Mr. President, I would like to be very clear
21 about this. Our position is that this is not a cover sheet for the 31
22 July transcript meeting. There are some transcripts which, in fact, do
23 have cover sheets. This is not one of them. This was not received as a
24 cover sheet. These are, in fact, notes taken by the transcribers, which
25 are the same individuals -- some of the same individuals we had sought to
1 schedule for testimony this or next week. They do not, as the Defence
2 seems to suggest, indicate a full list of the participants at the
3 meeting. This is what the transcribers and others would testify to. It
4 is our position that seeking to admit this document requires us to call
5 these witnesses in order to - first of all - provide the information to
6 the Court with respect to what this list actually is and what it is not.
7 We submit to Your Honour that seeking to admit this list is in
8 fact a challenge to Exhibit P461.
9 MR. MISETIC: Mr. President, this is produced to us by the Office
10 of the Prosecutor. The original is there. It was produced
11 contemporaneously at the time that the transcript was transcribed.
12 Now again we keep going around and around in the circles because
13 of the false allegation that we are challenging 461. There is a
14 difference between a challenge to the authenticity of the underlying
15 transcript and an issue as to whether someone was or wasn't present
16 during the meeting. Those are two totally different issues.
17 JUDGE ORIE: Yes.
18 MR. MISETIC: And I add that it's the Prosecution who is now
19 challenging a document that they, themselves, provided to the Defence
20 that was written up at the time the transcript was first transcribed.
21 Whatever weight they wish to argue about it is something that they can
22 feel free to argue about, but there is no dispute as to the authenticity
23 of the document from the Prosecution side, I would certainly hope.
24 And the fact that this is the standard procedure as to how such
25 cover sheets were put together. It is a cover sheet. It is a cover
1 sheet that wraps around the original transcript, and we would argue that
2 there is no reason that it shouldn't not be admissible. There is no
3 issue from the Prosecution, I'm sure, that this is an authenticate
4 document provided to the Prosecution that was prepared in the normal
5 course of transcribing presidential transcripts.
6 JUDGE ORIE: Yes. What apparently worries Mr. Russo is that you
7 would draw any consequences out of this cover sheet, especially that
8 persons not named on that cover sheet would not have been present during
9 the meeting. Whereas Mr. Russo says the purpose of this cover sheet or
10 the purpose -- it reflects persons that have spoken during such a
12 Is that more or less what -- what your concern is, Mr. Russo?
13 MR. RUSSO: That's one of our concerns, Mr. President. The more
14 important matter, however, is that this is not, and we do not agree that
15 this is it, first of all, a cover sheet. We don't agree that this is the
16 same kind of document which is an official cover sheet to transcripts as
17 we have received with others. We do not agree that it is authenticate in
18 the sense that the Defence's position is that this is an authenticate
19 cover sheet. We do agree do that. In fact, that is why we would call
20 the witnesses to testify as to what exactly this sheet is, what it
21 represents, and what it does not represent. That information cannot be
22 provided by a vow of Mr. Misetic and certainly cannot be forced upon us
23 as a stipulation which we do not agree to.
24 MR. MISETIC: Mr. President, I need to bring something to your
1 The Prosecution uploaded 65 ter 1352 and described it in e-court
2 as cover note around presidential transcript of 31 July.
3 Mr. Russo is not in conflict with us, he is in conflict with
4 himself. That is how the Prosecution has described it in e-court. To
5 now challenge the authenticity of a document that they uploaded into
6 e-court using the exact word that they used to describe it in e-court
7 is -- I'm flabbergasted. It is uploaded in e-court. I'm using the
8 description they used in e-court and he is now challenging the
9 description that his own office has used.
10 JUDGE ORIE: Cover note, cover page, the legal meaning of these
11 terms is still --
12 MR. MISETIC: I will stand corrected and I will use the phrase
13 cover note if there is any distinction to be made between cover page and
14 cover note.
15 JUDGE ORIE: Mr. Russo, let's not spend ages on this.
16 MR. RUSSO: I agree, Mr. President. However, how we chose to
17 describe things in e-court is not evidence in this case. The fact how it
18 came to us wrapped around the transcript is certainly correct. But that
19 doesn't transform it into another kind of document, such as we have
20 received with respect to other presidential transcripts. This is
21 precisely the reason why we would need to call witnesses to testify to
22 this matter, and the Court did catch on our to your additional concern
23 which is the conclusions to be drawn and to be argued from this list,
24 Mr. President.
25 JUDGE ORIE: Which seems to be not primarily an admissibility
2 MR. RUSSO: That would be correct, Mr. President.
3 JUDGE ORIE: I think the Chamber is sufficiently informed about
4 the matter.
5 MR. MISETIC: If I may just add, Mr. President, we did not know
6 or notice that what is now D1453 and was 1D00-0919 is also 65 ter 1352;
7 and, therefore, I don't know what that means, but I want the record to be
8 clear that it's the same document.
9 Thank you.
10 JUDGE ORIE: Thank you, Mr. Misetic.
11 I think we have dealt with all the matters which are, at this
12 moment on my agenda. Nevertheless, we'll further consider during the
13 next break whether we can resolve some other matters as well.
14 Mr. Russo, you're on your feet.
15 MR. RUSSO: Yes, Mr. President, I do have a few additional
16 matters which I don't know if they're on the Court's agenda or not. I
17 don't believe we have addressed them. However, we can do that after the
19 JUDGE ORIE: If you would just list them, then we would know, and
20 we would consider during the break.
21 MR. RUSSO: Yes. One would be the addition -- additions to
22 Exhibits D1249 and D1252, which the Prosecution has sought from the
23 Defence. And another matter, which is probably requires private session,
24 it was request made by the Prosecution for disclosure of portions of a
25 confidential transcript.
1 JUDGE ORIE: We have to move in private session. It is not
2 entirely clear it me at this moment.
3 Mr. Registrar.
4 [Private session]
18 [Open session]
19 THE REGISTRAR: Your Honours, we're back in open session.
20 JUDGE ORIE: Thank you.
21 D1249, D1252, Mr. Russo could you refresh my memory.
22 MR. RUSSO: Yes, Mr. President. These were manuals of, I
23 believe, the United States and the UK
24 Defence had offered these. We'd simply ask for the opportunity to upload
25 additional pages.
1 MR. KEHOE: Mr. President, we object strenuously to putting
2 hundreds of more pages in, which is what counsel is attempting do without
3 putting these documents to a witness. The documents that we used as part
4 of these manual and these manuals go on for thousands of pages, frankly,
5 I know in the US
6 them without putting them to a witness. The documents we use we put to a
8 JUDGE ORIE: How many are there -- how many are -- do you want to
9 be added, Mr. Russo? Hundreds? Thousands?
10 MR. RUSSO: I don't believe it is hundreds or thousands,
11 Mr. President, I'm not sure --
12 MR. KEHOE: I checked. On the US army manual that the counsel is
13 attempting to put in is, I believe, hundreds of documents that in the
14 range that was given to us in the e-mail.
15 MR. RUSSO: I will check that, Mr. President.
16 JUDGE ORIE: That is certainly something to verify during the
17 break, I would say.
18 Then we will have -- Mr. Kehoe.
19 MR. KEHOE: Mr. President, I don't know if you are taking
20 additional topics that have not been addressed or you want to do that
21 after the break.
22 JUDGE ORIE: I would like to have the -- if we can deal with them
23 or at least if we could be made aware of what they are --
24 MR. KEHOE: Yes.
25 JUDGE ORIE: -- then we could already start thinking about them.
1 MR. KEHOE: Maybe one we could tick off the list very quickly,
2 Your Honour had asked us to consult with counsel on the grid coordinate
3 methodology. We have -- we did that. We gave it to Mr. Russo. We
4 haven't been able to come to agreement, so we have filed our response
5 this morning; and I take it that the Prosecution will file theirs, and it
6 will be for the Chamber to figure out.
7 JUDGE ORIE: Yes.
8 MR. KEHOE: And the other issue, of course, I sent an e-mail to
9 Chambers as well as the Defence with regard to the Court's order of the
10 2nd of March concerning the 189 additional killings, and we can address
11 the additional steps from there.
12 JUDGE ORIE: Yes. We didn't give any order there but we decided
13 upon a motion which was earlier subject to the -- to the judgement of the
14 Appeals Chamber.
15 MR. KEHOE: Yes.
16 JUDGE ORIE: That's clear.
17 MR. KEHOE: We had just taken it simply -- we informed Chambers
18 of some additional steps we will take in that regard --
19 JUDGE ORIE: I do understand but as long as it is not on our
20 desk, of course, we can't do anything. It is not always necessary to
21 inform the Chamber but here I do understand that you wanted to alert the
23 MR. KEHOE: [Overlapping speakers] ...
24 JUDGE ORIE: [Overlapping speakers] ... yes. Mr. Kuzmanovic.
25 MR. KUZMANOVIC: Thank you, Your Honour.
1 I just wanted to inform the Chamber and hopefully you already
2 know that we did provide a courtesy copy of our further response on the
3 statement. It has been filed, and I would like to be heard on it if the
4 Court would be prepared today, I would be prepared to discuss it
6 Thank you.
7 JUDGE ORIE: That was the courtesy company announced for quarter
8 past 9
9 think I have at this moment some 25 or 30 unread e-mails. So we will
10 have a break now. I suggest that we have a break a bit longer than usual
11 in order to allow the Chamber to prepare for the next relatively short
12 session. We will have to see whether we can finish with all of the
13 things today; if not, of course, we would sit tomorrow as well and then
14 we will also pay attention on how to schedule tomorrow's session because
15 we certainly need -- not need the whole morning and whether it would be
16 wise to start early and continue, perhaps, at the end or what to do is
17 still to be considered.
18 We will have a break and resume at 20 minutes past 1.00.
19 --- Recess taken at 12.57 p.m.
20 --- On resuming at 1.31 p.m.
21 JUDGE ORIE: It may be clear to everyone, that we will not be
22 able to conclude today. But let's try to do our best.
23 Mr. Cayley.
24 MR. CAYLEY: I'm sorry, Your Honour, I will have to take you
25 backwards now. I know nobody wants to but P2409 which was the book,
1 "Military Operation Storm," related to Puhovski, whilst -- and, in fact,
2 Mr. Waespi very kindly reminded me of this. Whilst we had agreed with
3 the Prosecution on the redactions to that document. There was no
4 disagreement about that. There was quite extensive submissions in
5 writing on the 12th of -- on the 21st of January and then orally on the
6 12th and 27th of February. I'm corrected. It is 2402, I'm sorry. 12th
7 and 27th of February. The Court has not actually decided on that
8 submissions and that was about the reliability of the document as a
10 JUDGE ORIE: Yes, and you would like to include this in our
11 decision --
12 MR. CAYLEY: [Overlapping speakers] ... yes, yes, on that
14 JUDGE ORIE: We'll consider it. It's on the record, your request
15 to reconsider our decision of admission in light of that -- that I have
16 to understand it.
17 That also could mean that we come back to you, and say -- two
18 options either we say we will not admit in view of the consideration --
19 in view on the basis of the submissions you made, or we would come back
20 and then you lose perhaps a bit of a procedural insight to say the
21 reasons given or the submissions made do not cause us to reconsider.
22 And then, of course, whether we are still under an obligation to give
23 full reasons is a procedural matter we'll reconsider.
24 I don't want to give you the impression that the request as such
25 already would put us under an obligation to now fully reason where you
1 had given up earlier although perhaps a bit light-heartedly your
3 MR. CAYLEY: That's fine, Your Honour, I understand what you
5 JUDGE ORIE: No other matter.
6 Then come back to D568, well, not D568, Annex A. Any agreement?
7 MR. MARGETTS: Mr. President, we have resolved some matters, not
8 all of the matters. The documents are now uploaded into e-court, but I'm
9 waiting for a response from the Defence.
10 JUDGE ORIE: We'll leave it until tomorrow.
11 MR. MISETIC: We can deal with it today. I don't have an
12 objection; however, I wish to reiterate that with respect to what is
13 labelled as part 2 of Annex A, the distinction is that when D568 was put
14 together -- let me start again.
15 Part 2 is titled: List of relevant entries, in D568 relating to
16 crimes committed outside the area of the indictment. We have checked on.
17 There was an agreement reached after D568 was tendered as to what the
18 indictment municipalities are. So while these relate to crimes committed
19 outside the indictment municipalities, they do relate to crimes committed
20 within Sector South and more specifically within the "liberated areas" to
21 use the language of Mr. Moric's order.
22 With that caveat, I have no objection to this coming in.
23 JUDGE ORIE: And it has been uploaded already.
24 MR. MARGETTS: Yes, Mr. President Appendix A is 65 ter 7227.
25 JUDGE ORIE: Yes, Mr. Registrar, 65 ter 7227.
1 THE REGISTRAR: Your Honours, that becomes Exhibit P2403.
2 JUDGE ORIE: P2403 is admitted into evidence. Appendix B.
3 MR. MARGETTS: Yes, the amended Appendix B --
4 JUDGE ORIE: Amended Appendix B --
5 MR. MARGETTS: -- is 65 ter 7228.
6 JUDGE ORIE: And has been uploaded --
7 MR. MARGETTS: Yes, Mr. President.
8 JUDGE ORIE: -- and reflects agreement on this legal technical
10 MR. MARGETTS: Yes.
11 JUDGE ORIE: We'll have a look at it.
12 Mr. Registrar.
13 THE REGISTRAR: Your Honours, that will become Exhibit P2404.
14 JUDGE ORIE: P2404 is admitted into evidence.
15 There were observations against tendering C. Do you insist or
16 would you leave it as it is, Mr. Margetts.
17 MR. MARGETTS: Mr. President, we don't insist as far as we're
18 concerned the information contained in D568 and Appendices A and B is
19 sufficient for submissions of a similar nature to the conclusions in C
20 and D to be made.
21 JUDGE ORIE: Thank you.
22 Then we move on. Second issue: Presidential transcripts.
23 The Chamber will admit the presidential transcripts, the five
24 portions, as tendered by the Prosecution. The Chamber invites the
25 Defence to upload any relevant portion they'd like to have admitted into
1 evidence in addition to what the Prosecution has tendered. And that may
2 include also matters not of direct substance, but portions that would
3 shed a different light on dates, or agendas, whatever; so that the
4 Chamber is fully informed as possible on the context of what was
5 presented. So if the first page bearing a date is not among the dates,
6 then the Chamber would invite you also to link the page containing the
7 date with the pages following. Most important for the Chamber is that we
8 do not misinterpret any portion of these transcripts.
9 MR. MISETIC: Mr. President, in the e-mail I sent yesterday, I
10 already included additional portions that I would like to have included
11 and I have nothing further to add.
12 JUDGE ORIE: Nothing further to add. I think that the invitation
13 was to upload them. So that we can --
14 MR. MISETIC: Just for the benefit of my case manager, we seem to
15 get it both ways. If it is us using the document, we have to upload.
16 When it is our -- when it is their document, we have to upload it. So if
17 we could get --
18 JUDGE ORIE: Well, their document. I do not know exactly the
19 structure of the documents portions of a document. The Chamber would
20 like to have them uploaded so that we considered a admission into
21 evidence. That's most important than how it's done is now our primary
23 MR. MISETIC: Thank you, Mr. President.
24 JUDGE ORIE: Yes. But the Chamber would avoid lengthy debates on
25 how should upload it.
1 The Prosecution further should consult with Mr. Misetic on the
2 matter of translations, what makes a translation poor, what actually is
3 the problem; and the Prosecution should then urgently prepare and for and
4 organise how to get better translations uploaded and is invited to report
5 on these efforts tomorrow, so that the Chamber has an idea when and
6 how -- what the problem is and how it will be remedied.
7 Then although I have a few more matters on my list, I'd prefer to
8 read at least one and possibly two decisions. First decision is on the
9 Markac motion to strike parts of the Theunens expert report and
11 On the 17th of November, 2008, the Chamber issued its decision
12 and guidance with regard to the expert report, addendum, and testimony of
13 Reynaud Theunens. In its decision, the Chamber dealt with a number of
14 arguments brought forward by the Gotovina Defence, joined by the
15 Markac Defence, in its motion to strike Theunens's expert report and
16 addendum. However, the Chamber deferred its final decision on admission
17 of the expert report and addendum until after the testimony of Theunens.
18 During his testimony, Theunens was extensively questioned by both
19 parties, in relation to the production of his report, the content of the
20 report, as well as his expertise. On the 11th of December, 2008
21 the conclusion of Theunens's testimony, the Chamber inquired with the
22 parties whether there was a need for further submissions on the admission
23 of the expert report, beyond those already dealt with in the Chamber's
24 decision of the 17th of November, 2008. Neither the Prosecution nor the
25 Defence expressed a need for making further submissions. This could be
1 found at transcript page 13.530.
2 On the 22nd of January, 2009, the Chamber admitted Theunens's
3 expert report, the addendum, and the corrigendum into evidence as P1113,
4 P1114 and P1115. This can be found on transcript page 14.865.
5 On the same day, while the Court was sitting delivering its
6 decision on admission the Markac Defence motion to strike portions of the
7 Theunens's expert report and testimony was distributed to the Chamber.
8 On the 4th of February, 2009, the Prosecution responded to the
9 motion, arguing that it should be dismissed.
10 On the 10th of February, 2009, the Markac Defence filed a request
11 for leave to reply and a reply. The Chamber grants this request.
12 In the motion, Markac Defence requests that certain portions of
13 the Theunens' expert report not be admitted into evidence. However, the
14 Markac Defence had failed to raise any objections to the admission either
15 on the 11th of December, 2008, after invitation by the Chamber or at any
16 later date, before the 22nd of January, 2009. The Markac Defence was
17 aware that a housekeeping session when outstanding MFI's would be dealt
18 with, was planned for this date. Nevertheless, it did not raise any
19 objections before or at this session. In view of this, the Chamber
20 considers that the Markac Defence had ample opportunity to raise any
21 further objections to the admission of Theunens' expert report but failed
22 to do so.
23 The Chamber, therefore, proceeded to decide on the matter and
24 this decision was issued on the 22 January, 2009.
25 The Markac Defence has not requested certification to appeal the
1 Chamber's decision. They have not asked the Chamber to exclude the
2 expert report pursuant to Rule 95 of the Rules or requested to the
3 Chamber to reconsider its decision on admission. The Theunens expert,
4 therefore, is in evidence as of the 22nd of January, 2009, and remains in
6 In its motion, the Markac Defence also requests the Chamber to
7 strike Theunens' testimony with regard to certain topics that they claim
8 do not fall within the witness's expertise. The Chamber understands this
9 to mean that the Defence would like the Chamber to disregard these parts
10 of the testimony.
11 In its decision of the 17th of November, 2008, the Chamber set
12 out that it was not necessary, at the admissibility stage, to scrutinise
13 each opinion provided by the expert in the expert report, to ascertain
14 whether it fell within the witness's expertise. Opinions that fall
15 outside the expertise would simply be treated like other pieces of
16 opinion evidence. They will not be automatically disregarded, but the
17 Chamber will only consider whether to accept them as its own, if a proper
18 basis for them has been demonstrated. The Chamber adopts the same
19 approach with regard to Theunens' viva voce testimony.
20 For the foregoing reasons, the Chamber denies the Markac Defence
22 And this concludes the Chamber's decision.
23 [Trial Chamber and legal officer confer]
24 JUDGE ORIE: Before we adjourn for the day, I'm addressing you,
25 Mr. Gotovina, Mr. Cermak, and Mr. Markac.
1 The Chamber is aware that this might be boring sessions very much
2 of an administrative kind. The Chamber would not oppose if that for
3 other reasons would be possible at all - I'm not that much involved in
4 transportation schedules, et cetera - if would you say, We'd rather not
5 be present. The Chamber just wants to convey this to you. It might well
6 be that your counsel needs your instructions on the matters or that you
7 want to -- the Chamber does not interfere in any way with what you
8 consider important, but the -- usually, of course, we expect accused to
9 be present in court. If, under the present circumstances, you would
10 prefer to not to be present in view of the -- well, the nature, the
11 character of the sessions we have at this moment, then the Chamber would
12 seriously consider this and would not be surprised if you would wish not
13 to be present.
14 I leave it entirely in your hands, whether or not you want to
15 take any steps in this direction or not. But the Chamber just wanted to
16 express its preliminary view on this matter, in case it would be raised.
17 We adjourn, and we resume tomorrow, although we will certainly
18 not need the whole of the morning, tomorrow, Thursday, the 5th of March,
19 9.00 in the morning, Courtroom I.
20 --- Whereupon the hearing adjourned at 1.51 p.m.,
21 to be reconvened on Thursday, the 5th day of March,
22 2009, at 9.00 a.m.