Tribunal Criminal Tribunal for the Former Yugoslavia

Page 17728

 1                           Wednesday, 27 May 2009

 2                           [Pre-Defence Conference]

 3                           [Open session]

 4                           --- Upon commencing at 9.09 a.m.

 5             JUDGE ORIE:  Good morning to everyone in this courtroom and those

 6     assisting us just outside the courtroom.

 7             Mr. Registrar, would you please call the case.

 8             THE REGISTRAR:  Good morning, Your Honours.  Good morning to

 9     everyone in the courtroom.  This is case number IT-06-90-T, the

10     Prosecutor versus Ante Gotovina et al.

11             JUDGE ORIE:  Thank you, Mr. Registrar.

12             We are here today for the Pre-Defence Conference.  I have quite a

13     few items on my agenda, and we'll deal them.  At the end, if there is

14     anything to be added to the agenda, the parties can bring this to our

15     attention.

16             But, first of all, I established that Mr. Kuzmanovic is not

17     present.  He has informed the Chamber about his health condition, and I

18     hope that everything goes well with him.

19             First item on the agenda is the -- is about the determinations

20     the Chamber will have to make in relation to number of witnesses and the

21     time available for the presentation of the Defence cases.

22             On the 4th of May, all three Defence teams have filed their

23     submissions, pursuant to Rule 65 ter (G).  In their submissions, the

24     Defence specified the number of witnesses, the manner of testimony, and

25     the estimated time for examination-in-chief for each witness.  The

Page 17729

 1     submissions also included a summary of the facts on which the witnesses

 2     are expected to testify.  The Gotovina Defence sets out in its

 3     submissions that it will call 67 witnesses and that a total time for

 4     their examination-in-chief will be 125 and a half hours.

 5             The Gotovina Defence adds, however, that there are several

 6     witnesses on its witness list with whom it has never been in contact, and

 7     that securing the attendance of a certain witness might eliminate the

 8     need to call other witnesses expected to testify on the same topic.  The

 9     Gotovina Defence therefore anticipates that it will not have to call all

10     of the witnesses indicated and that it will use no more than 100 hours

11     for its examination-in-chief.

12             The Cermak Defence sets out that it will call 42 witnesses, and

13     that its examination-in-chief will take 49 and a half hours.

14             The Markac Defence submits that it will call 26 witnesses, and

15     that a total time for its examination-in-chief will be 97 and a half

16     hours.

17             Both the Cermak and Markac Defence indicate that they intend to

18     call all of their fact witnesses pursuant to Rule 92 ter.  The Gotovina

19     Defence, however, indicates that it intends to call 19 witnesses as viva

20     voce witnesses without introducing any statement for these witnesses

21     pursuant to Rule 92 ter.

22             The Chamber encourages the Gotovina Defence, to the extent

23     possible, to convert its viva voce witnesses into Rule 92 ter witnesses.

24             Experience from this case and from others show that presenting

25     witnesses pursuant to Rule 92 ter enables the calling party to shorten

Page 17730

 1     the time for examination-in-chief considerably.  For example, the average

 2     time for examination-in-chief of Prosecution witnesses called, pursuant

 3     to Rule 92 ter in this case, was 1.7 hours.  In this respect, the Chamber

 4     notes that the average estimates for 92 ter witnesses to be called by the

 5     Markac Defence is 3.2 hours.  Having reviewed the summaries of the

 6     expected testimonies of the Rule 92 ter witnesses to be called by the

 7     Markac Defence, the Chamber considers that there's room for shortening

 8     the examination-in-chief for many of these witnesses.

 9             The Chamber considers that a similar approach can be adopted with

10     regard to expert witnesses through whom a party intends to tender an

11     expert report or statement.  These documents often allow for a shorter

12     examination-in-chief which then only needs to address the central aspect

13     of the expert's evidence.  In this respect, the Chamber considers that

14     the estimates of the Cermak and Markac Defence, with regard to the

15     examination-in-chief of expert witnesses, are relatively high and could

16     be shortened.

17             The Chamber further adds that while both the Gotovina and Cermak

18     Defence intend to present evidence extensively pursuant to Rule 92 bis,

19     the Markac Defence has included no such witnesses in its list.  The

20     Chamber encourages the Markac Defence to consider and prepare for the

21     possibility to hear some of its Rule 92 ter witnesses to Rule 92 bis

22     witnesses.  I should say to hear some of its present Rule 92 ter

23     witnesses as Rule 92 bis witnesses.

24             This could include such witnesses who are called to testify about

25     the structure and general functioning of the special police during and

Page 17731

 1     after Operation Storm.  A decision on whether the evidence of these

 2     witnesses can be heard pursuant to Rule 92 bis is ultimately for the

 3     Chamber to make after having heard the parties.

 4             Moreover, having reviewed the summaries of the expected

 5     testimonies for the witnesses included on the witness lists for all three

 6     Defence teams, the Chamber considers that some time could be saved by

 7     focussing the examination of witnesses on topics most relevant to the

 8     issues of -- of the issues in the case.  In addition, further time could

 9     be saved by avoiding overlaps in the evidence to be elicited from

10     different witnesses.

11             The Chamber adds to this that it will, as has been its practice

12     throughout the case, carefully monitor how all parties are using their

13     time.  Should any of the Defence teams at some later stage consider that

14     further time is needed to present its case, it should then make the

15     appropriate submissions to the Chamber.

16             In its decision of the 22nd of May of this year, the Chamber

17     dealt with the inclusion of Marko Rajcic on the Gotovina Defence's

18     witness list.  As a result, on 26th May, the Gotovina Defence filed a

19     notice that it was removing this witness from its witness list.  Further,

20     in its submission, the Gotovina Defence indicated that it will reduce the

21     number of its witnesses.  Taking this into account, the Chamber accepts

22     the number of witnesses proposed by the Gotovina Defence.

23             The Chamber also accepts the number of witnesses proposed by the

24     Cermak and Markac Defence.  After having carefully reviewed the Defence

25     submissions, pursuant to Rule 65 ter with regard to the time needed for

Page 17732

 1     the presentation of their cases, the Chamber is inclined to grant

 2     90 hours to the Gotovina Defence; 75 hours for the Markac Defence; and

 3     45 hours to the Cermak Defence.  Before making a final decision on that

 4     matter, however, the Chamber invites the Defence to make any further

 5     submissions.

 6             These submissions could be made at this moment, but I invite

 7     parties to tell the Chamber whether such submissions could be made

 8     immediately.  If not, we'll find an arrangement when the Chamber will

 9     hear these submissions.

10             MR. MISETIC:  Mr. President, on behalf of the Gotovina Defence,

11     we accept the Chamber's decision and believe that the best way to proceed

12     is if for some reason we need to go above 90 hours, we will request

13     additional time from the Chamber, providing reasons why.  So that's fine.

14             JUDGE ORIE:  The 90 hours were not a decision, were an expression

15     of what we are inclined to do, but you certainly now encourage the

16     Chamber, as far as the Gotovina Defence is concerned --

17             MR. MISETIC:  Thank you.

18             JUDGE ORIE:  -- to proceed in this way.

19             Mr. Kay for the Cermak.

20             MR. KAY:  Yes, Your Honour, on behalf of the Cermak Defence, we

21     estimated 49 and a half hours but I have to tell the Court that there are

22     three additional witnesses I have in mind to call, but I have not been

23     able to finalise either seeing them yet or move beyond preliminary

24     discussions with those witnesses.

25             They are important witnesses, and we believe necessary for the

Page 17733

 1     Court to hear them, if we make the decision and they agree to be

 2     witnesses in the case.  In those circumstances, I was going to ask for a

 3     slight increase of our hours and I knew that I would be able to take some

 4     hours off some other witnesses, which is how I would have approached the

 5     matter, and I would need, I believe, 52 hours, if I am to call the other

 6     two witnesses -- other three witnesses, sorry.

 7             In those circumstances, I don't want the Court to make a final

 8     decision on our 45 hours at all, because it may be that the matter has to

 9     be revisited.  And I would prefer it if the Court kept to our estimate,

10     which is how we have been planning matters, and would be able to see,

11     once we were dealing with our evidence, quite how efficient we were going

12     to be in our presentations.  We're not going to be covering a load of

13     ground that's already in the statement.  The idea is that we cover

14     matters that may need some further explanation.  And so we're slightly

15     concerned about this number of 45, because it may cause -- may way work

16     to our disadvantage if we do call the other three witnesses.

17             The reason why we haven't been able to finalise matters is simply

18     this.  As the Court knows, I was brought into this case six months before

19     the trial started.  A great deal of time spent in preparing for the

20     Prosecution case and informing myself on potential Defence evidence.

21     I've had to start the formalisation process of Defence evidence whilst

22     working on the Prosecution case, and in the time until today, we achieved

23     a lot of work but we needed a bit more time to deal with these three

24     further witnesses.

25             On another matter, we anticipate there will be more 92 bis

Page 17734

 1     crime-base evidence relating to events between 1991 to 1995 in the

 2     Krajina.  That's not going to be a trouble to the Court, in terms of

 3     court time, because they are going to be statements and transcripts from

 4     other cases that have taken place in this Tribunal.  But we believe we

 5     have not had full disclosure on that issue of the previous crimes, and we

 6     know that there is further evidence available that might be

 7     confidentially filed with the Court and therefore requires a different

 8     means of extracting it.

 9             Your Honour, that's our position anyway.

10             JUDGE ORIE:  Thank you, Mr. Kay.

11             You will understand that -- I just briefly say a few words about

12     your submissions.

13             You will understand that the inclination of the Chamber was based

14     on the data as submitted by the Defence.

15             MR. KAY:  Yes.

16             JUDGE ORIE:  And I think I earlier already expressed that -- I

17     said should any of the Defence teams at some later stage consider that

18     further time is needed to present its case, that it should then make the

19     appropriate submissions to the Chamber.

20             Now, therefore it is a matter -- not knowing who your three

21     additional witnesses would be, it will be a matter for the Chamber

22     whether to say at this moment - this is on the basis what we've heard

23     until now - is the number of hours granted or whether we already expand

24     the number of hours, but there, of course, we do not know who the

25     witnesses are, what the subject matter of their testimony will be.

Page 17735

 1             And therefore one question for you:  When do you think that you

 2     could provide that information?  That is, a proposal to or an application

 3     for leave to add three witnesses to your witness list?  Because it could

 4     be very practical reasons that we start now on a certain number of hours.

 5     Being aware of that an application, as you just indicated, is likely to

 6     be made or whether we wait with our decision.

 7             Could you give us any indication?

 8             MR. KAY:  Your Honour, I'm looking at the timetable of the

 9     Gotovina Defence schedule and the idea is this.  That when it's

10     appropriate and matter doesn't require my attendance here, that I remove

11     myself to another jurisdiction and deal with matters there.  And so we've

12     just had a revised witness schedule served on us yesterday, and it seems

13     to me that within the next four weeks I will be in a better position to

14     deal with that matter.

15             And these -- by this I'm talking about the three live witnesses.

16     I think the Court will accept the 92 bis other trial transcript and

17     statement evidence is in a rather different category from the live

18     evidence of the witnesses that we're talking about at this stage.

19             May I say, though, I know I can present our case in 45 hours in

20     relation to the witnesses we've got.  Of course, I can do that.  But I --

21     I'm flying a flag that I don't want to be pinned in, if I do have this

22     further application in relation to one, two, or three more witnesses.

23             JUDGE ORIE:  If any application will be made for one, two, or

24     three witnesses at a later stage, no one can say that it comes as a

25     surprise.

Page 17736

 1             MR. KAY:  That's why I raise it.  Thank you, Your Honour.

 2             JUDGE ORIE:  Mr. Mikulicic, would you like to make any

 3     submissions in relation to the --

 4             MR. MIKULICIC:  Your Honour, on behalf of Markac Defence I could

 5     only say that we are -- accept fully the position of the Honourable

 6     Chamber as it regards to the number of hours, and we will surely try to

 7     present our case within the time-limit given by the Chamber.

 8             On the other side, we are in a quite similar position as the

 9     Cermak Defence and we will simply -- may be in position just as it

10     regards to one or two witnesses to add or to switch the witnesses on our

11     list in due course.  And as soon as we will be awaring of that situation

12     we will surely inform the Chamber on it by the proper motion.

13             JUDGE ORIE:  It is common knowledge in this courtroom that

14     witness and exhibit lists as initially filed do not have an eternal life,

15     are not iron lists.  At the same time, they are an important instrument

16     to guide us through the proceedings.

17                           [Trial Chamber confers]

18             JUDGE ORIE:  Mr. Kay and, to a lesser extent Mr. Mikulicic, the

19     Chamber has decided that it will at this moment set the number of hours

20     and the Chamber is fully aware that the lists, not to say that they are

21     of rubber but they are not of iron either.  The Chamber is aware of that.

22     You have given also an estimate of what the Chamber most likely could

23     expect that is not doubling it, but one, two, or three witnesses.  We're

24     talking about, in relation to the 45 hours, you indicated that you might

25     need 52 hours.  So we know more or less within which range the Chamber

Page 17737

 1     could expect further applications, and the Chamber, of course, will keep

 2     this in the back of its mind but will set the number of hours in full

 3     awareness of what you said at this moment.

 4             That means, that having heard and considered the submissions by

 5     the Defence, the Chamber grants 90 hours for the Gotovina Defence; 75

 6     hours for the Markac Defence; and 45 hours for the Cermak Defence.

 7             This decision by the Chamber now, of course, requires the parties

 8     to reassess the number of hours for their witnesses.  This should

 9     finally, sooner or later, result in new consolidated lists with the

10     hours.  The Chamber is not insisting on producing a lot of paper, all the

11     summaries again, et cetera, and then new numbers of hours attached to it.

12     Nevertheless, the Chamber would like to be informed in the most practical

13     way about the changes this will result in for the number of hours, for

14     the witnesses to be called soon.

15                           [Defence counsel confer]

16             MR. MISETIC:  Mr. President, we just wanted to alert the Chamber

17     that we intend to do that.  But going back to the first point you made

18     with respect to 92 ters and that we have some viva voce witnesses on our

19     list.  The reason for that is not because that's our choice but because

20     either there's a witness who's unwilling to give a statement or we're

21     dealing with Rule 70 providers.  It is our intention, first of all, in

22     the next several weeks, through cooperation with the Rule 70 provider to

23     ultimately get witness statements from Rule 70 protected witnesses, which

24     will certainly then shorten the number of hours, but that will take some

25     time and so we will propose or put -- file our final our final list after

Page 17738

 1     we get a positive or negative response from some of the Rule 70

 2     providers.

 3             In addition to that, as Mr. Kehoe reminds me, we will perhaps

 4     eliminate some of the duplicative witnesses, which may result in an

 5     increase in hours for one witness but that will be at the expense of

 6     saving the hours that would have been used calling two or three other

 7     witnesses on the same topic.

 8             So overall, we believe we will be within the 90-hour, now,

 9     decision of the Trial Chamber.

10             JUDGE ORIE:  Yes.  Of course, the Chamber is fully aware that --

11     and I think somewhere in the decision to the extent possible, which

12     expresses already the awareness by this Chamber of the limitations.  If a

13     witness doesn't want to give a statement, 92 bis and 92 ter are not

14     available.  That's clear.  But, for example, moving from 92 ter to 92 bis

15     would, for example, require that an attestation is obtained and then, of

16     course, still whether the Prosecution will ask to cross-examine that

17     witness is still unknown, and the Chamber will have to decide that.

18             But it's all a matter of preparing and not closing options, which

19     might save time and are not jeopardising the fairness and the efficiency

20     of these proceedings.

21             So we're not asking you, at this moment, to spend a lot of time

22     on producing complete new lists, et cetera.  I mean, for example,

23     Witness B plus two would already give the kind of information the Chamber

24     would like to receive well in advance of the witness testifying, and we

25     will keep, as always, a close record of the time spent.

Page 17739

 1             Then I move to my next item.

 2             The next item deals with the timing of opening statements and a

 3     few matters to be put on the record, first of all.

 4             The Chamber decided to hear the opening statements of the

 5     Cermak and Markac Defence in the days immediately following the

 6     Pre-Defence Conference.  The parties were informed of this decision in an

 7     e-mail sent by the Chamber's staff at 2.50 p.m. on the 15th of May, and I

 8     will read this into the record.

 9             The e-mail addressing the parties reads as follows:

10             "The Chamber requests the Cermak Defence and the Markac Defence

11     to make their opening statements on the 28th of May, and, if necessary,

12     on the 29th of May, 2009.  This decision will be confirmed on the record,

13     either at the Pre-Defence Conference on the 27th of May, or in writing."

14             The Chamber wished to have immediately after the Pre-Defence

15     Conference an overview of all three Defence cases in order to better

16     monitor possible overlaps between the cases.  The Chamber also found that

17     this would place it in a better position to ask questions from the Bench

18     during all these Defence cases, Defence cases which were jointly dealt

19     with within the indictment.

20             The Chamber considered and rejected a request for reconsideration

21     made by the Markac Defence and informed the parties thereof in an e-mail

22     sent by the Chamber's staff at 1.50 p.m. on the 19th of May.

23             That e-mail reads:

24             "The Chamber has considered the request of the Markac Defence for

25     reconsideration of the Chamber's decision regarding the timing of opening

Page 17740

 1     statements and was not convinced by the arguments put forth.  The request

 2     is therefore denied.  This will be confirmed on the record, either at the

 3     Pre-Defence Conference on the 27th of May, or in writing.  The Chamber

 4     will therefore proceed to hear opening statements on the 28th and, if

 5     necessary, the 29th of May.

 6             "In this regard, and in order to consider the request of the

 7     Gotovina Defence to call its first witnesses on the 2nd of June, 2009,

 8     the Chamber wishes to hear from the Cermak and the Markac Defence by the

 9     close of business today" -- that was the 19th of May, "how long time they

10     would like to use for their respective opening statements."

11             The Chamber found that a clear error of reasoning had not been

12     demonstrated and that reconsideration in this case was not necessary to

13     prevent an injustice.

14             In an e-mail sent by the Chamber's staff at 2.51 p.m. on the

15     19th of May, the Chamber granted a request by the Gotovina Defence to

16     call its first witness on the 2nd of June, 2009.  In making this

17     decision, the Chamber considered that the time estimates provided by the

18     Cermak and Markac Defence for their opening statement did not leave much

19     time for hearing testimony on Friday, the 29th of May, and the Chamber

20     furthermore considered the fact that the 1st of June, 2009 is a

21     UN holiday.

22             I move on to my next agenda item, which is dealing with matters

23     of scheduling hearings.

24             An e-mail was sent to the parties on the 15th of May at

25     6.06 p.m., sent by the Chamber's staff.  I will read that e-mail:

Page 17741

 1             "With regard to the Defence case during the Gotovina et al case,

 2     in particular taking into account the number of hours requested by the

 3     three Defence teams, the Chamber has considered to sit extended sessions.

 4     This would mean the possibility of sitting six, rather than five sessions

 5     per week.  However, since the Presiding Judge is also the Presiding Judge

 6     in the Stanisic and Simatovic case, which is scheduled to start in the

 7     beginning of June, such extended sessions might not be possible.  Rather,

 8     the Chamber might need to reduce the number of sessions to four per week.

 9     The Chamber would like to further discuss the scheduling of the Defence

10     case with the parties during the Pre-Defence Conference on the

11     27th of May, 2009.

12             "In the meantime, however, the Chamber asks the parties to plan

13     and prepare for normal court sessions" -- and I now add to that that's

14     five a week for a normal week, "for the first few weeks of the Defence

15     case.  This means normal court sessions on the 27th till the 29th of May,

16     2nd until the 5th of June, 8 until the 12th of June, and 15th to the

17     19th of June."

18             The Chamber wished that it would already be able to finalise all

19     scheduling issues.  Unfortunately, that is not possible.  There are quite

20     a bit of uncertain factors which we have to take into account and there

21     are all kind of limitations.

22             Is there anything the parties would like to raise in this

23     respect?  And before giving you an opportunity to do so, I already

24     announce that the Chamber has decided that it will not sit during the

25     normal recess, which starts at the -- the 27th of July, the

Page 17742

 1     14th of August, and that the week immediately the recess, that we'll also

 2     not sit.  Chambers have an opportunity to have one week in addition, and

 3     the Chamber has a clear preference for the week after the formal recess.

 4     Which would mean that we will start -- that the week of the

 5     17th of August until 21st of August would be a non-sitting week and that

 6     we would restart on the 24th of August.

 7             Any submissions by the parties in respect of the scheduling

 8     issues.

 9             MR. KEHOE:  The one issue on behalf of the Gotovina Defence,

10     Mr. President, is the six sessions.  Obviously that is difficult.

11     Mr. Misetic and I are the ones that are conducting the examinations of

12     these witnesses and to do a fulsome job requires us to be preparing those

13     matters as we move through the weeks.  So we -- both of us will be moving

14     in and out, but if we do move six sessions, that would be very difficult

15     for us to accomplish.  So, of course, we always accept the

16     Trial Chamber's orders and, of course, we will operate on the current

17     schedule, but if we do move to six it would pose some difficulties.

18             Thank you.

19             JUDGE ORIE:  Yes.  The Chamber is aware that it causes

20     difficulties.  Of course, it causes difficulties for the Chamber as well.

21     That's -- that goes without saying.  And, of course, there's a fair

22     expectation that if the other case, in which at least one if not more

23     Judges of this Chamber will be involved, proceeds as scheduled, that six

24     sessions would certainly not be a realistic expectation.  But, as I said

25     before, we have in many respects -- we have uncertainties, which even

Page 17743

 1     could lead occasionally to sitting less than we would wish to sit.  It is

 2     also other cases, Judges sitting on other cases involved and the

 3     scheduling issue, courtrooms, Judges.  It's all rather complex, and we're

 4     working hard to achieve a result in which minimal time, if any, will be

 5     lost.

 6             Any further submissions by the Cermak and Markac Defence in this

 7     respect?

 8             Then I move on to the next item of my agenda, which is the issue

 9     of disclosure where the Chamber, I think, encouraged the parties to reach

10     an agreement.  The parties then asked for additional time until yesterday

11     evening, and the Chamber would like to be informed whether or not any

12     agreement was reached between the parties.

13             MR. MISETIC:  Mr. President, I believe an agreement in principle

14     has been reached.  We're just -- Mr. Russo sent me a proposal yesterday.

15     I tweaked it a little bit on the language and I'm just waiting to hear

16     his response.  But I don't anticipate that we will have a problem

17     reaching agreement.

18             MR. RUSSO:  Yes, Your Honour, we'll be getting back to

19     Mr. Misetic this afternoon, and I don't anticipate a problem.

20             JUDGE ORIE:  Yes.  Then the Chamber would like to be informed as

21     soon as possible about the content of the agreement.  Because however it

22     important it may be that you agree upon certain matters, of course

23     finally the Chamber will have to agree with your proposal as well.  So,

24     therefore, the Chamber expects a joint proposal by close of business

25     today?  Yes.  That's on the record.

Page 17744

 1             The next item on my agenda is the timing of disclosure of expert

 2     reports.  I think that on the 16th of April, the parties were invited to

 3     see whether it could agree on the -- on acceptable deadlines for the

 4     submissions of expert reports which would still enable the Prosecution to

 5     prepare and to keep in mind, in this respect, the time-limits set out in

 6     Rule 94 bis under (B).  The e-mail continued by saying:

 7             "If no agreement is possible, please inform the Chamber as soon

 8     as possible, copying all parties.  The Chamber will then need to issue an

 9     order with regard to time-limits for the disclosure of expert reports."

10             I don't think we have heard since then from the parties, which

11     would suggest that there is an agreement but there's no --

12             MR. KEHOE:  Your Honour, I will fall on the sword first, with my

13     learned colleagues shortly behind.

14             This one slipped through the cracks, Judge, I'm sorry.  And we

15     said we were going to talk about it and we have talked about things and

16     have met with each other, but I think we jointly plead guilty.  We didn't

17     do it on this issue yet.

18             My apologies on behalf of my colleagues and myself and co-counsel

19     on this side of the well.  I'd like to give a better answer to that, but

20     I don't have one.

21             JUDGE ORIE:  Mr. Kehoe, I don't have to tell you that for a

22     Chamber to accept a guilty plea, it should verify whether the underlying

23     facts exist or not.  So, at this moment, I don't think there is any time

24     for either denying or accepting the guilty plea, but the Chamber, of

25     course, would appreciate if this would be among the matters to be

Page 17745

 1     discussed in the very near future, because it may well be an urgent

 2     matter.  And, of course, much depends also on when the experts are to be

 3     called; at a late stage, at an early stage.  The Chamber would also like

 4     to be informed about this aspect, because sometimes it is an advantage to

 5     have heard already expert evidence in order to better understand evidence

 6     of a more factual nature, which is to be presented as well.

 7             So, therefore, we invite the parties to agree on time of

 8     disclosure but also to include in their conversations the timing in

 9     relation to experts first, expert late, or this expert rather early

10     because of those and those witnesses of fact, or to include these

11     elements in the conversations, when -- we have not heard and this is now

12     confirmed that an agreement was not possible.

13             Now we'll put the question in a positive way:  When will the

14     parties inform the Chamber whether there is an agreement?

15             MR. KEHOE:  Your Honour, can we just get together maybe at the

16     break and see what kind of schedule we can come up with so that we can

17     schedule to schedule?

18             JUDGE ORIE:  Yes.  We will hear from you after the break.

19             Then I move on to the next item on the agenda.

20             On the 17th of April of this year, the Prosecution filed a motion

21     requesting the Chamber to issue an order to enforce what it claimed to be

22     the established procedure of disclosing lists of documents to be used

23     during examination of witnesses.  After subsequent filings by both the

24     Defence and the Prosecution, the Chamber now understands that the parties

25     have come to an agreement on this issue.  This agreement is set out in

Page 17746

 1     the Prosecution's filing of the 8th of May, and the Gotovina Defence's

 2     filing on the 11th of May, and the Chamber understands that the

 3     Prosecution therefore now asks the Chamber for leave to withdraw its

 4     motion of the 17th of April, 2009.

 5             Mr. Russo.

 6             MR. RUSSO:  That's correct, Mr. President.

 7             JUDGE ORIE:  The Chamber hereby grants leave to withdraw the

 8     motion of the 17th of April, 2009.

 9             I move to the next item which deals with the first witness to be

10     called by the Gotovina Defence.

11             There is a still pending motion by the Gotovina Defence, the

12     Gotovina's motion pursuant to Rule 85 to hear the testimony of a witness

13     out of turn, which was filed on the 11th of March.  It seems,

14     Mr. Misetic, that that motion could be declared moot or withdrawn.

15             MR. MISETIC:  I think it's both, Mr. President.  But we will move

16     to withdraw the motion.

17             JUDGE ORIE:  If we declare it moot in an oral decision that would

18     save you --

19             MR. MISETIC:  Yes, Mr. President.

20             JUDGE ORIE:  -- some -- not much work at least.

21             MR. MISETIC:  Yes.

22             JUDGE ORIE:  The Gotovina's motion pursuant to Rule 85 to hear

23     the testimony of a witness out of turn, filed on the 11th of March, 2009,

24     is hereby declared moot.

25             The parties were informed in relation to this same witness that

Page 17747

 1     the Gotovina Defence - and a request was received only from the

 2     Gotovina Defence, not from any of the other Defence teams - that the

 3     request for leave to reply was granted and that the Chamber had reserved

 4     10 minutes to hear submissions.

 5             Mr. Misetic.

 6             MR. MISETIC:  Just for clarification, Mr. President, do I have

 7     10 minutes, or is it 5 and 5?  Is it 10 for each side?

 8             JUDGE ORIE:  It was not without reason that we said the Chamber

 9     reserved 10 minutes and I earlier said that there was no request from the

10     other Defence teams.

11             The Gotovina Defence has 10 minutes and whether we will hear

12     additional submissions from the other Defence teams, we'll hear from them

13     after that.

14             MR. MISETIC:  Thank you, Mr. President.

15             With respect to the OTP's response to the 92 ter filing let me

16     state that, first as a preliminary matter, it is not our intention to

17     overwhelm the Chamber with paper and certainly if there is material that

18     is duplicative, it doesn't need to be in there if the Chamber doesn't

19     wish it to be in there.  However, for the sake of completeness, we felt

20     it important to provide the complete statements that the witnesses

21     provided.   However, reviewing the material, I have no problem, for

22     example, removing Mr. Milosevic's cross-examination of the witness, as I

23     do think it is duplicative of what the witness said both in his statement

24     and on direct examination of the Prosecution.

25             As a general matter, the Chamber is aware that -- aware through

Page 17748

 1     the opening statement that we provided last year of the importance of the

 2     issue to the Defence of the policies and behaviour of the leadership of

 3     the so-called Republika Srpska Krajina from 1991 through 1995,

 4     specifically as it relates to the issue of the reasons for the departure

 5     of the Krajina Serbs.

 6             Given that, we have already indicated to the Chamber in our

 7     opening statement that it is the position of the Defence that it was the

 8     ethnic policies of the Krajina Serb leadership, as well as a policy of

 9     instilling fear into its own population for purposes of encouraging

10     ethnic separation and the continued existence of the RSK.  We believe

11     that the testimony of this witness as to events from 1991 through 1995 in

12     the entire Krajina has relevant information for the Trial Chamber as it

13     relate to the issue of the policies -- I should add not only of the

14     Krajina Serb leadership but the leadership in Belgrade, and how all of

15     that connects directly to the issue of the reasons for the departure of

16     the Krajina Serbs.

17             I would state that this issue or the issue raised by the

18     Prosecution is that the issue -- the information provided by the witness

19     does not directly relate to the temporal and geographic scope of this

20     indictment.  I don't believe that is the standard and I would note that

21     in the Prosecution's case in chief, the Chamber will recall a similar

22     issue arising.  This is at transcript page 4889 beginning at line 22,

23     when Mr. Galbraith was testifying.  The Defence objected to the

24     Prosecution's intent to lead evidence through Mr. Galbraith of

25     President Tudjman's policies in Bosnia.  And we raised a similar

Page 17749

 1     objection and at that time the Prosecution took the position that

 2     Mr. Galbraith offered -- and this is at line 4 of page 4890:

 3             "The witness offers extensive testimony about the position and

 4     attitudes of the Croatian leadership towards the continued presence of

 5     Serbs in the Krajina."

 6             Mr. Tieger went on to state that President Tudjman views about

 7     the need for ethnic homogeneity in a state and the resultant implications

 8     for the actions that were taken in connection with this case was

 9     relevant, and then he said:

10             "Evidence of President Tudjman's views and the views of other

11     Croatian leaders about such issues as ethnic homogeneity, population

12     transfers and the like is relevant to the Court and should be heard."

13             And then concluded by saying that it was clear that the Chamber

14     could -- was capable of distinguishing between matters that fell within

15     the temporal and geographic scope and matters that did not.

16             And the Court will recall that, on page 4897, it denied the

17     objection of the Defence and allowed Mr. Tieger to lead evidence on this

18     point with the caveat that background material should not become

19     foreground material.

20             Similarly, Mr. President, we submit that the -- because of the

21     importance of the issue of the policy of the Krajina Serb and Belgrade

22     leadership as it directly relates to the -- both, I guess, the reason for

23     the departure of Krajina Serbs as well as the need to launch Operation

24     Storm, the witness offers relevant information on those topics.  We note

25     that this is the only witness on the Gotovina witness list who is

Page 17750

 1     scheduled to appear to testify viva voce on these topics.  The rest of

 2     the witnesses on our list related to this specific background information

 3     are being presented either pursuant to Rule 92 bis or 92 quater, and

 4     therefore this background information while relevant is also going to not

 5     be duplicated in -- through future witnesses, and we ask that the Chamber

 6     keep that -- or consider that as well.

 7             The witness's information, specifically now on the points that we

 8     intend to show, are the connection that this witness will show of the RSK

 9     to the Belgrade leadership.  That issue is important to the Defence,

10     first of all, because the witness will confirm that General Gotovina --

11     it will provide information which will confirm that General Gotovina in

12     Operation Storm was not simply facing the ARSK but a common enemy with a

13     headquarters in Belgrade throughout the entire operation.

14             The second is the Prosecution objects to the witness's testimony

15     with respect to what happened to him and other Krajina Serbs when they

16     left the Krajina, and what happened to them when they got to Serbia and

17     the fact that they were transferred to Arkan's camps in Eastern Slavonia.

18     We believe that information is highly relevant because the Prosecution

19     has raised the issue in its direct of Croatia's reluctance or alleged

20     reluctance for a mass return of Krajina Serbs.  We believe the fact that

21     Krajina Serb males aged 18 to 65, after the departure from Croatia, were

22     mobilised in various military units for the purposes of continuing to

23     wage armed conflict against the Republic of Croatia is relevant material

24     and needs to be heard by the Chamber.

25             The witness will describe from 1991 through 1995, throughout the

Page 17751

 1     entire Krajina, a policy of the Belgrade and Krajina Serb leadership of

 2     creating a "psychosis of fear among Serb civilians" which is intended by

 3     the Defence to be a direct rebuttal of paragraph 28 of the joinder

 4     indictment.

 5             We note that paragraph 12 of the joinder indictment states that

 6     the common purpose of the JCE was not that it was the permanent removal

 7     of the Serb population from the southern portion of the Krajina but,

 8     rather, from the entire Krajina, and therefore to the extent that the

 9     Prosecution allegations that the purpose of the JCE was the removal of

10     the entire Krajina Serb population, this witness's evidence is certainly

11     relevant, despite the fact that is he in Sector North, about the events

12     that took place in the entire Krajina from the Krajina Serb side, as a

13     direct rebuttal to paragraph 12 of the joinder indictment.

14             And finally, I would note that in paragraph -- page 3 of the

15     Trial Chamber's order of the 21st of February, 2007, where the

16     Trial Chamber invited the Prosecution to shorten its indictment both

17     temporally and geographically, there's a portion that says that the

18     Prosecution was still entitled to lead evidence of a pattern of events

19     encompassing the charged municipalities, and we submit that this

20     witness's testimony certainly provides information concerning the pattern

21     of events that led us to Operation Storm and provides information to the

22     Chamber about what transpired.

23             So that extent, Mr. President, given that this is the only

24     witness that will be called viva voce witness called by the Defence, we

25     believe that the submission should be permitted through Rule 92 ter, and

Page 17752

 1     in particular, so that we don't have to lead all of this evidence orally.

 2     We, in particular, believe it should be led -- or should allowed in

 3     written form, and as I indicated, if the Chamber wishes we can remove

 4     Mr. Milosevic's cross-examination, which would save the Chamber having to

 5     read many of the extra pages that were included in the 92 ter.

 6             Thank you.

 7             JUDGE ORIE:  Thank you, Mr. Misetic.

 8             Cermak and Markac Defence, any need to make submissions on the

 9     matter?

10             MR. KAY:  No, Your Honour.

11             MR. MIKULICIC:  No, Your Honour.

12             JUDGE ORIE:  Thank you, Mr. Kay and Mr. Mikulicic.

13             Prosecution, Mr. Hedaraly, may I already draw your attention to

14     that.  It seems that there may be two matters involved.  The one is

15     relevance and probative value; that's the matter raised by the parties.

16     The other matter is the efficiency.  What details do we need in order to

17     address a matter of recent history?

18             I just give a example which is not related to this witness.  If a

19     witness presented under Rule 92 quater is deceased, then, of course, it

20     should be established that he is deceased.  Whether we need full details,

21     many, many, many pages on all those circumstances, and whether the

22     parties could not have agreed on the death, and I would say in ten lines

23     the circumstances under which that person died instead of 30 pages.  I'm

24     not saying irrelevance but there is disproportion between the number of

25     pages spent on the matter and the information it provides to the Chamber.

Page 17753

 1             I just want to draw your attention to the fact that apart from

 2     the issues raised, whether its relevant, whether its probative or not,

 3     that one could also consider either to agree on certain matters or to be

 4     very selective.  For example, the example I just gave.  Again, not

 5     related to this witness.  That if you want to present it not as a agreed

 6     facts or a description in ten lines, one could have limited itself, for

 7     example, to the conclusions of a report in relation to the death of a

 8     person.

 9             I'm raising this matter because both aspects deserve attention.

10             Mr. Hedaraly.

11             MR. HEDARALY:  Thank you very much, sir.  Mr. President, you have

12     foreshadowed in part what we wanted to address, which is some of the

13     points that Mr. Misetic raised regarding relevance we don't object to.

14     Some of the examples he gave today are not portions of the statement to

15     which we have objected.

16             What we have was not only a relevance objection but was a

17     practical matter of an almost 400-page transcript and a 40-page statement

18     which is more of a background issue and, based on the Chamber's guidance,

19     should not be made the foreground, and although it could arguably be

20     relevant at times, the fact that it would take hours to review for the

21     Chamber and it may not really assist the Chamber, so although relevant

22     some portions do not raise -- of a relevance significant enough to have

23     sufficient probative value under 89(C).  For example, the activities of

24     the witness as a member of the Serbian Intelligence Service between 1968

25     and 1991, it is still not clear why that is relevant.  And similarly,

Page 17754

 1     Mr. Misetic is talking about between 1991 and 1995.

 2             Really the issue is, Your Honour, that it is on the Defence, who

 3     is the party tendering the statement, to show why it is relevant.  They

 4     should select the portions that are relevant to avoid just dumping the

 5     Chamber and the Prosecution with the 400-page transcript, saying it's all

 6     relevant, it's all about the -- the attitude of the -- of Belgrade and

 7     what happened and it's relevant to our opening statement.

 8             We're not saying the issues raised in it are not relevant, but

 9     there is an disproportionality of the relevance of that information and

10     what is presented.  There are details about what happened in 1992, who

11     the witness met, to show all these details of control, which is not

12     really, we believe, the main focus of this case.  So if there is a

13     selection made by Defence and they present to us, this is why it is

14     relevant, this is what we want, then we will obviously look at it.  And

15     we have said we don't object to many portions of the statement, so it is

16     just a matter of a practical issue, and I think it is on the Defence to

17     show why it is relevant and which portions it wants to tender, rather

18     than dump the whole thing and, you know, say we want to submit the

19     400 pages.

20             MR. MISETIC:  Mr. President.

21             JUDGE ORIE:  Yes, Mr. Misetic, perhaps I should inform you that

22     the Prosecution is an experienced expert in this field.  I remember from

23     the previous cases where a thousand pages were submitted under

24     Rule 92 bis or 92 ter that upon encouraging the Prosecution to look at

25     what really assisted the Chamber there were even able to reduce it to

Page 17755

 1     10 percent of that size.

 2             So, therefore, I take it that Mr. Hedaraly is speaking from a

 3     large experience in the OTP dealing with these kind of matters.

 4             Please.

 5             MR. MISETIC:  Thank you, Mr. President.

 6             As I indicated, I'm trying, for example, to cut Mr. Milosevic's

 7     cross-examination.  I don't have a problem with that.  But I am confused

 8     by Mr. Hedaraly's presentation because on the hand it's relevant and he

 9     doesn't deny it's relevant; but on the other hand, he calls it a dumping

10     on the Chamber.

11             The material with respect to his -- his work from 1968 to 1991 is

12     simply a background information.  I note that the Prosecution itself has

13     tendered that portion into evidence in a Chamber in which you are also

14     presiding and I don't think that the Prosecution deleted it from the

15     92 ter presentation and filing in that case, in the Jovica Stanisic case.

16     So I don't understand why in this case it's duplicative, it has nothing

17     to do with -- it's not relevant, but what the witness was doing in 1968

18     apparently is relevant to the Prosecution in the Jovica Stanisic trial.

19             It's simply background describing what the witness did.  It's as

20     if in other 92 ter statements we say, you know, the witness's education

21     falls outside the geographic and temporal scope of the indictment.  I

22     understand that but ...

23             JUDGE ORIE:  Yes.  Wouldn't there be a way, for example, if I get

24     a long description of what someone did in five years which is not

25     directly -- but it's interesting as background, it's the same as with

Page 17756

 1     historical evidence.  Would we have to know all the details of a battle

 2     which took place five centuries ago, or can we just agree on that a

 3     battle took place in a certain context?  Where a total description of the

 4     battle would take us ten pages whereas a short description would perhaps

 5     take us ten lines.  I'm just trying to find out whether you could not

 6     summarise that.

 7             MR. MISETIC:  Let me give you my answer to that.

 8             And let me take a step back and explain because it requires me

 9     now to go into details.

10             The witness's background is important because it establishes that

11     he worked for Yugoslav and later Serbian intelligence.  That fact is

12     going to be relevant later in the trial because we intend to show

13     Jovica Stanisic's connection to the events that took place on the 4th and

14     5th of August, in Knin, 1995.

15             This witness has a relationship both with Jovica Stanisic and

16     Frenki Simatovic.  We have an intercepted phone conversation which was

17     P450 which, unfortunately, the Prosecution reduced and now that

18     intercepted conversation has been removed.  But this witness's relation

19     to Frenki Simatovic and Jovica Stanisic is going to be relevant because

20     the Prosecution has put into dispute the shelling of Knin on the 5th of

21     August, in the morning.  We intend to show a conversation and control by

22     Jovica Stanisic, Frenki Simatovic, of Mile Mrksic in Knin on the evening

23     of the 4th, and the fact that it was agreed that units under Frenki

24     Simatovic's control were to be in Knin on the morning of the 5th.

25             This witness's background information and the fact that he

Page 17757

 1     understands the inner workings of what really transpired and who really

 2     had control is important to us.  I will note that -- I will note that I

 3     have, already two weeks ago, asked the Prosecution if they would

 4     stipulate as agreed facts the OTP's pre-trial brief in the

 5     Jovica Stanisic trial as agreed facts so we don't have to cover a lot of

 6     ground, and I have sent a reminder yesterday.  So I still don't have an

 7     answer in -- to my proposal that they simply stipulate to what they have

 8     alleged in the Stanisic trial.

 9             So to answer your question about whether I'm trying to reach

10     common ground, I am.  I think that I have said that the entire pre-trial

11     brief in the Stanisic case is something that we agree on.  So, we are

12     trying to shorten this up but we're awaiting for a response from the

13     Prosecution.

14             MR. HEDARALY:  First of all, we were waiting to get some

15     information of why all these facts were relevant, and this is what we're

16     asking Mr. Misetic to do.  He has the burden as tendering party for the

17     statement to show why it's relevant.  All we say is, if we can know why

18     these are relevant, then we agree.  If they're just submitted as 92 ter

19     statement sometimes, frankly, the relevance is not that clear by looking

20     at that statement or looking at that transcript for that particular

21     witness.

22             Regarding the Stanisic pre-trial brief, one of the things that I

23     would tell Mr. Misetic is that there is a later version that was filed

24     and the version that he proposed was not the current one.  We are

25     reviewing it.  We wanted to see what we can achieve here but there was

Page 17758

 1     never anything about let's limit this testimony if we agree to the -- to

 2     the pre-trial brief in the Stanisic case.

 3             I mean, I don't want to spend half an hour arguing about if

 4     something is relevant or not, if it's better that it comes in.  But, at

 5     the same time, I mean, we can't just have everything and have a good

 6     faith proffer that this is all relevant to something and put it in.  But

 7     if we have -- if we know what portions are relevant for which topics and

 8     it's sort of, like, presented to us in that way, then we can -- we can

 9     agree.  We can look at these portions, those 400 pages.  These 30 pages

10     are for this topic and that's why it's important.  These 20 pages deal

11     with this topic, that's why it's relevant.  Then we can examine it and we

12     can agree.  And as we have said in our -- even in our filing, a lot of

13     this stuff, we agree that it is relevant.

14             That's all we have, Your Honour.

15             MR. MISETIC:  Mr. President, one --

16             JUDGE ORIE:  One word, Mr. Misetic.

17             MR. MISETIC:  I will note that Mr. Hedaraly nor anyone from OTP

18     has ever contacted me requesting any further clarification on why

19     Mr. Lazarevic's witness statement is relevant.  The first I heard of any

20     dispute about the relevance was after they filed their filing.  At no

21     time did he contact me between the filing of our 92 ter and the filing of

22     his response.

23             Second --

24             MR. HEDARALY:  The burden is clear.  It's on the tendering party

25     to show why it's relevant.

Page 17759

 1             MR. MISETIC:  Mr. President, one other fact.  Mr. Hedaraly has

 2     now raised some -- some new fact about some new or revised statement.

 3     The Chamber will note, as you have noted, that we have agreement with the

 4     Prosecution that was -- that was reached with respect to the disclosure

 5     of exhibit lists.  The flip side of that agreement was that they were to,

 6     under 66(B), provide state -- all statements of our witnesses.

 7             JUDGE ORIE:  I -- were you referring to a revised statement or to

 8     a revised pre-trial brief, Mr. Hedaraly.  I think that's --

 9             MR. HEDARALY:  I think I said pre-trial brief.  If I have

10     misspoke then it is my mistake.

11             JUDGE ORIE:  No.  That's what I heard, as a matter of fact.  I

12     have to look whether that appears on the transcript.

13             MR. MISETIC:  Well, if it's the pre-trial brief, Mr. President, I

14     took the one that is the latest public pre-trial brief.

15             JUDGE ORIE:  Yes, that's fine.  But, first of all, there's no

16     disclosure issue of a new statement but, rather --

17             MR. MISETIC:  That's fine.

18             JUDGE ORIE:  So that has been settled.

19             It seems that both the Gotovina Defence and the OTP are craving

20     for further communications of such a level that it -- in their clear wish

21     to assist the Chamber to do it the best way possible, and, of course, the

22     burden is on the party who presents the evidence.  At the same time,

23     what's the best way to revolve the matter.  Of course, the Chamber could

24     give a ruling and then we know exactly one of the parties could be

25     disappointed.  Could be that both are very happy at the end.  But, of

Page 17760

 1     course, the Chamber always prefers to see whether the parties can agree

 2     on certain matters so that they are both of the opinion that this is the

 3     best way to assist the Chamber.

 4             And in that respect, also, Mr. Misetic, some matters you raised

 5     as relevant matters, the involvement of the witness in certain

 6     activities, there, again, the issue is what should we know?  Should we

 7     know all the details of his involvement in all missions, et cetera; or

 8     could we just -- or could the parties just say, Well, I find important

 9     that from that year to that year that the witness was performing his

10     duties under the supervision or under the orders of Mr. A, B, and C, and

11     that he went on mission to that, that, and that place, and that, finally,

12     on those missions, he injured five persons as instructed of that

13     ethnicity or not.

14             I mean, what I'm trying to do is to see whether there is not a

15     practical solution for many of what apparently seems to keep you apart.

16     And, of course, if -- if you don't reach an agreement, the Chamber will

17     decide on the matter.  But both parties are taking a risk and -- because

18     one of the things the Chamber cannot do is to look at the positions taken

19     by both parties and then to find a kind of a -- of a middle position.  I

20     mean, we cannot negotiate.  We have to say, yes, this is of sufficient

21     relevance, sufficient probative value, or we have to say no, and that can

22     be the whole of it, it can be portions of it.  But of course, sometimes

23     it's preferable that the Chamber gets in a summary form information which

24     may in all its details not be of that relevance but, nevertheless,

25     interesting enough for the Chamber to hear, and in the most efficient

Page 17761

 1     way.

 2             Is it of any use to invite the parties again to continue its

 3     disturbed communication and I would give as a guidance that I would avoid

 4     using the word "burden," not to say forget about it, but if you don't use

 5     that word, then it certainly would not trigger any strong opposition.

 6             MR. HEDARALY:  Mr. President --

 7             JUDGE ORIE:  Yes.

 8             MR. HEDARALY:  -- I will renew the offer we have made.  If

 9     Mr. Misetic wants to present to us either portions, summaries of portions

10     to make the matter more efficient, I said it before, I will say it again,

11     we will look at them and I think -- I think we can work reasonably.  It

12     is really a matter of volume, so if Mr. Misetic says, you know, there are

13     100 pages of transcript, these are the summaries of 20 lines, if we look

14     at it, we agree that that summarises that evidence, we have no problem

15     with looking at it and then deciding if we agree that it's relevant or

16     not.  Then if it's not, maybe we still leave it in as background

17     information, but I don't want -- I will not use the word "burden," but at

18     the same time, I mean, we have to know why it is being tendered.  So if

19     Mr. Misetic presents to us portions, summaries of portions and saying why

20     it is relevant, we will go through it and we will give an answer to

21     Mr. Misetic.  And then if we can't reach agreement, then we will come to

22     the Chamber.

23             JUDGE ORIE:  Yes.

24             MR. MISETIC:  Mr. President --

25             JUDGE ORIE:  Yes, Mr. Misetic.  At a certain moment we have to --

Page 17762

 1     I mean --

 2             MR. MISETIC:  Yes, but I need to clarify the record.

 3             JUDGE ORIE:  Yes.

 4             MR. MISETIC:  There has been no offer and I need correct

 5     Mr. Hedaraly on that.  This is the first time that he has made this

 6     presentation.  He and I haven't spoken, I don't believe, in two months or

 7     had any communication whatsoever since the 98 bis ruling so --

 8             JUDGE ORIE:  I take it will be a pleasure for you to meet again.

 9             MR. MISETIC:  I'm thrilled, Mr. President.  It's always

10     thrilling.

11             JUDGE ORIE:  You know, you just don't know when -- I don't know

12     when, but if you make an appointment, then you would know where and when.

13     It's an urgent matter.  When do you think that --

14             MR. MISETIC:  Well, let me just make my point for the record,

15     Mr. President.

16             I have no problem if he has -- and they have outlined specific

17     portions and I will be glad to file a response and explain to him why the

18     portions that he claims are irrelevant are in fact relevant.

19             However, there's two things that have to you keep in mind.  One

20     is that I cannot anticipate everything that is going to be relevant,

21     given that I don't know what their position is in cross-examination.  So

22     if he is going to stipulate or concede that the witness in fact was an

23     experienced member of the Yugoslav counter-intelligence from 1968 to 1992

24     and there is no dispute about what his activities were, that's fine.

25             On the other hand, if I remove that and then if he's going to

Page 17763

 1     come up in cross-examination and say this witness - I'm being

 2     hypothetical now - this witness doesn't have specific experience in a

 3     particular field, et cetera, obviously that's something we have to

 4     discuss.

 5             I'd be happy to discuss it with him, Mr. President, but as I

 6     said, I think I made the same point to Mr. Russo the other day.  It is

 7     our intention, Mr. President, to avoid getting the Chamber involved in

 8     matters that can be revolved privately amongst the parties.  To that

 9     extent, now that I've heard Mr. Hedaraly wants to sit down and talk about

10     it, I certainly have no problem continuing along the path that I

11     indicated to Mr. Russo was the path that we prefer.

12             JUDGE ORIE:  Mr. Hedaraly, that -- it seems that more could have

13     been achieved in the communication, and I leave it as neutral as that,

14     than has been achieved until now.

15             I'm addressing both parties.  Is it of any use to give you, and

16     if so, how much time, to see whether the achievement could be improved?

17             MR. HEDARALY:  Your Honour, we can talk but I think it would be

18     more fruitful if we had first something from the Defence as to how what

19     -- why portions or how it can be summarised rather than just sit down and

20     talk.  I'm happy, if we have that, to meet as quickly as possible and

21     hopefully we can get something from them and then meet up and get a

22     response to the Chamber by Friday.

23             JUDGE ORIE:  This is typical lawyers' approach.  I'm quite

24     willing to look at what you send to me.  It is of no use to sit together.

25     Sometimes it is of use to sit together briefly, 15 minutes, half an hour,

Page 17764

 1     then to more or less sense the temperature of the water, to say, Here

 2     seems to be a major problem; here the problems seem to be minor, then to

 3     agree on who will prepare what, and then in the next meeting see whether

 4     any further results can be achieved.

 5             This is -- I'm not a mediator but this is the kind of approach

 6     which might work better than to say, We are waiting for your first

 7     proposal; or, You have to do this.  I mean --

 8             MR. MISETIC:  Mr. President.

 9             JUDGE ORIE:  Cooperative attitude, brief meeting often will pave

10     the way for further results.

11             MR. MISETIC:  That is certainly the position of the Gotovina

12     Defence and I will add that, Mr. President, it's been our experience when

13     we actually sit down face to face that we have fruitful resolutions of

14     problems, and when we resort to paper that is when things get off the

15     tracks a little bit.

16             JUDGE ORIE:  And you have missed that for two month, I do

17     understand, yes.

18             Then ...

19                           [Trial Chamber confers]

20             JUDGE ORIE:  The Chamber, in its ever optimism, would like to

21     hear from the parties by this Friday, not about whether but what results

22     were achieved in the further conversations.

23             MR. HEDARALY:  That's fine, Mr. President.

24             JUDGE ORIE:  Mr. Misetic, I see you nodding yes as well.

25             MR. MISETIC:  Yes, Mr. President.

Page 17765

 1             JUDGE ORIE:  Then it's time for a break.

 2             We will resume at 11.00.

 3                           --- Recess taken at 10.36 a.m.

 4                           --- On resuming at 11.03 a.m.

 5             JUDGE ORIE:  Is there any news to be reported on the issue of

 6     disclosure of expert reports?

 7             Mr. Kehoe.

 8             MR. KEHOE:  Yes Mr. President.

 9             Mr. Russo and I discussed this at the break, and we are going to

10     just get some time-frames coming back in the office and we're going to

11     consult later on today, And I think we can resolve this amicably on

12     time-frames without a need for court order.  I do think we're both on the

13     same page in this regard, so ...

14             JUDGE ORIE:  Yes.  And when will the Chamber be informed of the

15     results of?

16             MR. KEHOE:  If we could just inform you at the beginning of next

17     week, if that's satisfactory, when the --

18             JUDGE ORIE:  Yes.  There's no expert yet scheduled to --

19             MR. KEHOE:  No, Your Honour

20             JUDGE ORIE:  -- to be called at this moment.

21             MR. KEHOE:  Not for some time.

22             JUDGE ORIE:  Yes.  Then under those circumstances beginning of

23     next week is acceptable to the Chamber.

24             Then I would like to move on to the next point in my agenda,

25     which is the Gotovina Defence would review the maps and ensure that all

Page 17766

 1     targets from the Jagoda target list are depicted on the maps and that all

 2     targets are described on the maps in accordance with the formulation we

 3     find on the Jagoda list.

 4             MR. KEHOE:  Yes, Mr. President.  We have done that and yesterday

 5     it was e-mailed to Mr. Russo for his review.  I think we can come back to

 6     the Chamber relatively quickly with a consensus on that.

 7             JUDGE ORIE:  Yes.  Was it just the one or were there other --

 8             MR. KEHOE:  There were -- the problem with the designation is,

 9     and I went back and talked to the staff that did it, that there was not

10     enough space to put all of the writing in, and -- so we've tried to

11     abbreviate it accordingly.  And that has been a difficulty on some of

12     those targets.  You remember those -- they had that one target that was a

13     multitude of targets.  If you put all that writing in, it just doesn't

14     merge with Google Earth and that was the difficulty.  And certainly after

15     Mr. Russo looks at it, we're willing to edit that so it's as transparent

16     as possible for all involved.

17             JUDGE ORIE:  Mr. Russo.

18             MR. RUSSO:  Yes, Mr. President.  Apologies for not responding to

19     the e-mail prior to today.  I took a look at it.  I don't have any issue

20     with what was sent over.

21             JUDGE ORIE:  Yes.  So, therefore, apparently the material is

22     ready to be refiled.

23             MR. KEHOE:  Yes, we will do that today.

24             JUDGE ORIE:  And that -- so the series of maps will be replaced

25     in e-court by the updated ones, and they were marked for identification.

Page 17767

 1             MR. KEHOE:  They were, Mr. President.

 2             JUDGE ORIE:  And then the Chamber will decide an admission.

 3             MR. KEHOE:  Yes, Your Honour.

 4             JUDGE ORIE:  Thank you.

 5             It was D1460 which we were talking about.

 6             The Chamber has also considered whether or not it should admit

 7     into evidence P2502, which is the municipal court judgement, in relation

 8     to Witness -- a claim made by Witness 13.  The Chamber decides that this

 9     exhibit does not meet the standards in respect of relevance and probative

10     value and is therefore not admitted into evidence.  That's the judgement

11     about war damage and how that is defined under Croatian law and what

12     results that has in that litigation.

13             I move to my next subject which is a statement by the Chamber

14     related to the unredacted version of Witness Mate Lausic's diary.

15             The parties are aware that the redacted diary of Witness

16     Mate Lausic is in evidence as Exhibit P2166.  The parties will further

17     recall that the witness explained, at transcript page 15.386, that before

18     providing a typed version of his diary to the Prosecution, he redacted

19     portions he described as being of a purely personal nature.

20             At transcript pages 15.421 to 15.423, the Chamber then asked the

21     witness to provide the full unredacted version of the diary to the

22     Chamber so that it could verify with the parties that everything redacted

23     by the witness was indeed of a private nature.  Through the victims and

24     witness section, the witness has since, on two occasions, provided the

25     Chamber with unredacted parts of his diary.  With regard to the first

Page 17768

 1     part, the Chamber reviewed the portions the witness had identified as

 2     purely private but could not confirm this assessment.  After a further

 3     communication with the witness, he no longer objected to the usage of the

 4     first part in an unredacted form.

 5             With regard to the second part, the witness left it to the

 6     Chamber to make the assessment of which parts should be disclosed to the

 7     parties.  After an assessment of the second part, the Chamber is of the

 8     opinion that the diary parts do not contain matters of a purely private

 9     nature and therefore finds that it is appropriate to make both parts

10     available to the parties in an unredacted form.

11             The registrar has therefore been instructed to provide each party

12     with a copy.  Should the parties wish to make further submissions on the

13     matter, the Chamber will hear from them in due course.

14             And this concludes the Chamber's statement relating to

15     Mate Lausic's diary.

16             I move on to the next issue on my agenda, which deals with a

17     pending motion filed by the Cermak Defence for material in the Martic

18     case, protected material.

19             The Chamber has not yet received from the Prosecution a response

20     but would already like to raise a matter in this context.

21             The Cermak Defence has set out a summary of the subject matter in

22     the evidentiary material which is protected to the extent possible,

23     because one of the testimonies was in closed session, and, therefore, the

24     Cermak Defence was not able to give details already about the content of

25     that.

Page 17769

 1             Looking at the submissions by the Cermak Defence to the extent it

 2     was aware of the content of the testimony, the Chamber wondered where

 3     whether this material could be considered exculpatory evidence.  If that

 4     would be the case, under Rule 75(F)(ii) it is clear that if there are

 5     protective measures ordered in relation to a certain matter, that, still,

 6     a disclosure obligation, if that material is exculpatory, binds, is --

 7     creates an obligation for the Prosecution.

 8             In that case, as a matter of fact, and, again, under the

 9     hypothesis that this material could be considered exculpatory and to some

10     extent, of course, the Chamber would not know either, especially not even

11     have an idea, especially in view of material which we were not informed

12     about the content.  If, however, the Prosecution would consider this to

13     be exculpatory, and the Chamber got a bit of the feeling that the

14     material was sought because of its exculpatory character on its face,

15     then, of course, there would have been no need, at least for those

16     portions where we are aware, where Mr. Kay is aware of the content, there

17     would have been no need to file a motion because the disclosure

18     obligation on exculpatory material would still be there.  Although the

19     Prosecution would then have to inform the Cermak about the protective

20     measures that were ordered in respect of that material and to inform

21     Mr. Kay that -- that those protective measures were still effective.

22             So we have not yet received a response, but the Chamber wondered

23     whether or not, for quite a portion of the material covered by the

24     motion, whether it was -- whether there existed any need at all, and for

25     the Prosecution to perhaps include its views on this matter in a

Page 17770

 1     response, if, of course, the Prosecution would not yet come to the

 2     conclusion that there was an ongoing disclosure obligation in relation to

 3     this matter, in which case, I take it, disclosure would most likely lead

 4     to a withdrawal of the motion.

 5             MR. KAY:  Your Honour, there is another motion in fact waiting,

 6     because we are anxious to get this material as quickly as possible dealt

 7     with and we were hoping to deal with it during the break in the case.  As

 8     it is, we will now have unfinished business whilst the trial is ongoing

 9     and we have another one which Ms. Higgins has drafted which was about to

10     be served.  We have just served a Rule 66, 68 disclosure by the

11     Prosecution and I have been looking at it and I cannot see it satisfies

12     any of the issues we're concerned with.

13             But Ms. Higgins may be able to say more on the matter.

14             JUDGE ORIE:  Ms. Higgins, if you could spend a few words on the

15     matter.

16             MS. HIGGINS:  We wanted to review so that we could thoroughly

17     assess the situation as to whether or not other material that we suspect

18     exists in the cases such as Milan Martic, Milosevic, and Babic, has been

19     served upon us.  To our record search to date it has not and our searches

20     were ongoing as of yesterday.

21             So what we had done was to draft a Rule 68 motion, which is due

22     to be served either today or tomorrow, requesting an overall view of

23     whether or not that Rule 68 has been served in accordance with the

24     Prosecution records, and if not, service immediately upon the Defence so

25     that we can then make our preparations to ensure that we are able to

Page 17771

 1     utilise the information for Defence purposes.

 2             I should say that prior to drafting the Rule 68 motion which is

 3     still pending, we had been in informal discussions with the Prosecution

 4     via e-mail contact which had been unsatisfactory in our view, and it was

 5     for that reason that we have drafted the motion.  And to make it easier

 6     for the Chamber, those communications are set out as briefly as possible

 7     so that Your Honours can understand where we are at the moment.

 8             I hope that assists.

 9             JUDGE ORIE:  Thank you, Ms. Higgins.

10             Well, the Chamber has drawn the attention to a potential issue

11     that is the obligation to disclose exculpatory material.  The Chamber has

12     not formed any opinion whether it is or not but certainly draws the

13     attention of the Prosecution, in this respect, to Rule 75(F)(ii).  We'll

14     then look at the motion to come.  We'll see what the Prosecution's

15     response will be to the pending motion and whether it -- and if it

16     results in any further disclosure, even without an order, of course, the

17     Chamber would like to be informed about it.

18             I move on to my next item which is the last item on the agenda

19     prepared by the Chamber.  That is, I will read a decision on protective

20     measures for Witness 67.

21             On the 9th of March, 2009, the Prosecution requested the

22     protective measures of pseudonym and under seal treatment for Witness 67.

23     The Prosecution argued that Witness 67 was concerned about testifying

24     publicly and did not want her identity as a witness divulged to the

25     public.

Page 17772

 1             On the 16th and 17th of March, 2009, respectively, the Cermak and

 2     Markac Defence responded to the request, not objecting to it.  The

 3     Gotovina Defence did not respond to the request.

 4             Witness 67's statements were admitted pursuant to Rule 92 bis of

 5     the Tribunal's Rules of Procedure and Evidence on the 5th of March, 2009.

 6     None of the Defence teams objected to the admission of Witness 67's

 7     statements.

 8             As the Chamber held in previous decisions on protective measures,

 9     the party seeking protective measures for a witness must demonstrate an

10     objectively grounded risk to the security or welfare of the witness or

11     the witness's family, should it become known that the witness has given

12     evidence before the Tribunal.

13             Witness 67 is a Croatian Serb who is one of the survivors of a

14     Scheduled Killing Incident outlined in the indictment.  She expressed

15     fear for her safety as she now lives in the same general area as during

16     the war.  She is worried that those who shot her in 1995 might seek

17     retribution for her testimony before the Tribunal and might come back to

18     harm her.  Witness 67 is still very troubled by her experiences and the

19     fact that the Croatian authorities had been contacting her for their

20     investigations of the wartime incidents exacerbated her fears.

21             Keeping in mind the fact that the Defence did not object to the

22     request, the Chamber found no reasons to come to a different conclusion,

23     and the Chamber therefore grants the motion for protective measures for

24     Witness 67 and instructs the registrar to keep under seal Witness 67's

25     two witness statements and her Rule 92 bis attestation.

Page 17773

 1             And this concludes the Chamber's decision to grant protective

 2     measures for Witness 67.

 3             I have no further items on my agenda, and I invite the parties to

 4     raise whatever could be appropriately raised during this Pre-Defence

 5     Conference.

 6             MR. HEDARALY:  We have no other matters to raise, Your Honour.

 7             JUDGE ORIE:  No other matters.

 8             Gotovina Defence.

 9             MR. KEHOE:  We have nothing, Mr. President.

10             JUDGE ORIE:  Cermak Defence.

11             MR. KAY:  No, Your Honour, thank you.

12             MR. MIKULICIC:  No, Your Honour, not for the moment.

13             JUDGE ORIE:  Thank you.  Well, the moment is now over,

14     Mr. Mikulicic.  So -- no, no, I do understand your --

15             That means that we can conclude this Pre-Defence Conference.  Let

16     me -- one second.

17                           [Trial Chamber and legal officer confer]

18             JUDGE ORIE:  We can conclude this Pre-Defence Conference, and we

19     will adjourn and resume until tomorrow, Thursday, the 28th of May,

20     quarter past 2.00, in Courtroom I.

21                            --- Whereupon the hearing adjourned at 11.26 a.m.,

22                           to be reconvened on Thursday, the 28th day of May,

23                           2009, at 2.15 p.m.