1 Friday, 24 July 2009
2 [Open session]
3 [The Accused Gotovina and Markac not present]
4 --- Upon commencing at 11.12 a.m.
5 JUDGE ORIE: Good morning to everyone.
6 I see that Mr. Gotovina and Mr. Markac have waived their right to
7 be present in court today.
8 Mr. Cermak, you are therefore alone now.
9 Mr. Registrar, would you please call the case.
10 THE REGISTRAR: Good morning, Your Honours. Good morning to
11 everyone in the courtroom. This is case number IT-06-90-T, the
12 Prosecutor versus Ante Gotovina, et al.
13 JUDGE ORIE: Thank you, Mr. Registrar.
14 We'll try to deal with a couple of procedural matters so that we
15 know what we still have to do during the recess period, or what we don't
16 have to do anymore.
17 I would first like to deal with scheduling issues after the
18 recess. Not everything is yet entirely clear how we would use our time
19 after the recess and for what exactly. Let me start with one informal
20 recess that there would be a break between the conclusion of the
21 Gotovina Defence case and the start of the Cermak Defence case. The
22 Chamber, at this moment, on the basis of the reasons presented, has not
23 decided to grant a seven- or ten-days' break, but more will become clear,
24 perhaps if we deal with scheduling as a whole.
25 What we know at this moment is that the Gotovina Defence intends
1 to call five witnesses after the recess, the total number of hours
2 scheduled for examination-in-chief being 21 hours. There still are a few
3 uncertain matters, such as an application for 92 bis witnesses where no
4 decision has yet been taken, where we do not even know what the position
5 of the Prosecution will be, whether they want the Chamber to call the
6 witnesses, the witness to be called for cross-examination. We further
7 have - and I'll deal with that at a later stage - we have an expert
8 report which is sought to be admitted through taking judicial notice of
9 it, so there are still a few uncertain factors anyhow.
10 Let's go back to the five witnesses after the recess. On the
11 basis of the information the Chamber has received on the time needed for
12 cross-examination, which is a little bit over 40 hours, this would result
13 in total time for examination-in-chief and cross-examination of some
14 64 hours, which equals 18 court days. The Chamber recently has had the
15 experience that sometimes the examination of witnesses took considerably
16 less time than foreseen. Therefore, the Chamber invites the parties to
17 see whether they can agree on a realistic schedule for the weeks after
18 the break. That would mean starting 24th of August. So to come up with
19 a realistic schedule which would take, at the maximum, 15 days for
20 examination-in-chief and cross-examination. If it could be done in less
21 than 15 days, the Chamber would certainly appreciate that.
22 Apart from that, the Chamber urges the Gotovina Defence to
23 organise the work in such a way that we would not have frequent gaps in
24 which considerable court time is -- remains unused. The Chamber is aware
25 that this may cause specific problems. When I think of Witness AG-2, I
1 can imagine that that might not be easy. But, nevertheless, the Chamber
2 invites the Gotovina Defence to use all its inventivity in order to avoid
3 what has happened recently, that is, that we are not in court for
4 considerable time. This would result, if agreed upon, at -- in finishing
5 the Gotovina Defence case certainly not later than the 11th of September,
6 and preferably earlier.
7 As far as the start of the Cermak Defence case is concerned, the
8 Chamber provisionally schedules the Cermak -- the start of the
9 presentation of the Cermak Defence on the 17th of September. So despite
10 the fact that the Chamber found no reasons to grant a break, the
11 practical effect might be, depending on how matters develop, that there
12 will be some break. At the same time, the Chamber has considered that,
13 of course, the Cermak Defence should not be entirely dependant on, I
14 would say, the behaviour of other parties, the Chamber, and, of course,
15 the Cermak Defence itself, during the preceding weeks. The Chamber will,
16 of course, first of all, have a close look at any agreed schedule the
17 parties come up with, and the Chamber will further closely monitor what
18 actually happens during those weeks, and, on the basis of those
19 observations, if there's any need to adapt the 17th of September as the
20 starting date, whether it could be earlier or later, we'll look at it
21 during those weeks.
22 This, as far as scheduling is concerned any -- I noticed, for
23 example -- the Chamber noticed and is, of course, unaware of what could
24 happen, but in relation to Witness AG- -- I think he was scheduled for
25 eight hours. If we look at the statement we have received until now if
1 that would be the subject matter covered by the examination-in-chief, the
2 Chamber is not yet fully convinced that that would take up eight hours.
3 But, again, it could be that other matters not yet in the statement would
4 be part of it, so the Chamber is hesitant to say anything, but --
5 Mr. Misetic.
6 MR. MISETIC: I think we should prepare as if it would take that
7 long. The reason being that the statement is short because the witness
8 refused to read his daily communications with his superiors, if I can put
9 it that way. And, therefore, it may be necessary in court to show him
10 physically since he is not willing to look at the reports to show them in
11 court and then to ask him questions on the basis on what he wrote.
12 JUDGE ORIE: Yes. As I said before, the Chamber was unaware of
13 what might arise in viva voce testimony compared to the statement, and
14 this exactly are the kind of issues to be discussed between the parties.
15 I asked the parties to agree on a realistic schedule.
16 Any other matter in relation to scheduling?
17 Mr. Kay.
18 MR. KAY: Your Honour, I can assist the Court, because having
19 been given the date, 17th of September, and appreciated the issues that
20 the Court is looking at, my first two witnesses will be expert witnesses,
21 and I have been able to receive this morning their translated reports.
22 They were reports prepared in the Croatian language, and they have now
23 been translated for me. I have been able to review those reports, and
24 that has enabled me to make a more realistic assessment as to how long
25 they will be in direct examination.
1 Those witnesses will be considerably shorter than the estimates
2 given in our schedule. I think General Feldi was put at six hours to my
3 recollection. Having seen his report, seen what it covers, and how it
4 narrows the issues for me, I'm of the view, having had a quick read
5 through today, that I could be one session of an hour and a half. So the
6 Court will see that a considerable effect will be on the duration of our
7 time with our -- our witnesses being in a position of being better
8 informed, as I am now.
9 JUDGE ORIE: Thank you for that information, Mr. Kay. The
10 Chamber is appreciative of focus on the most efficient use of court time.
11 MR. KAY: Yes.
12 The second witness, Mr. Kovacevic, exactly the same. Having
13 received his report late last night, having reviewed it quickly, I can
14 see again my time is going to be considerably lessened with him. And I
15 will obviously - now have I read it in English - be able to make those
16 kinds of tactical decisions which will help the Court's scheduling, and I
17 give notice to all parties that those two witnesses will be considerably
18 lesser than anticipated in our 65 ter (G) submission.
19 JUDGE ORIE: Thank you, Mr. Kay. The expression of our
20 appreciation when you had dealt with Mr. Feldi is therefore now doubled,
21 because Mr. Kovacevic is included now as well.
22 Any other matter in relation to scheduling?
23 MR. RUSSO: Mr. President, the other matters that the Prosecution
24 had wished to raise will have some effect on scheduling. I don't know if
25 you care to hear those now or take --
1 JUDGE ORIE: Yes, I think it was -- I think there are two -- for
2 me, there are at least two issues, the one being the provisional position
3 taken by the Prosecution in relation to the 92 bis statements. There
4 were 11 of them. And another matter, but we might deal with that at a
5 later stage, is the -- how to deal with the expert report of -- on
6 political propaganda, the expert report by Mr. de la Brosse, I think.
7 These are the two matters which seem to be related to scheduling.
8 MR. RUSSO: We also have the Prosecution's request regarding
9 disclosures on all remaining experts, which, for the reasons I'll mention
10 later, will have an effect on scheduling.
11 JUDGE ORIE: Yes. It was announced that -- it is on my agenda
12 that you would like to address these matters.
13 As far as 11 bis, as 92 bis witnesses is concerned, could you
14 already give an indication of the position of the Prosecution in relation
15 to the need to call these witnesses for cross-examination of that we can
16 really treat them as 92 bis witnesses.
17 MR. RUSSO: Mr. President, our position with respect to the
18 11 witnesses, first of all, we will be filing written objections to those
19 submissions. However, we're very seriously considering and quite likely
20 will propose to simply submit the arguments which we would make regarding
21 each witness, as well as the evidence which we would present regarding
22 the witnesses, simply to do that in the submission, and leave it in the
23 Court's hands as to whether or not it is necessary under 90(H) to
24 discharge our obligation by actually putting these matters to the
25 witnesses since most of them will deal with credibility in any respect,
1 but we're certainly amenable to the idea of simply leaving it in the
2 Court's hands as to whether they should be called or not.
3 One other matter with respect to that. Mr. President, we would
4 like to reserve the right in connection these witnesses since most of
5 them are being called to rebut the testimony of one particular witness,
6 we've tried to get the personnel file of that particular witness from the
7 government of Croatia
8 not been forthcoming. The only disclosure we have ever had with respect
9 to this particular witness has come through documents from the Defence.
10 So given how these matters get resolved, we would, if we get our hands on
11 that, seek to submit that to the Court.
12 JUDGE ORIE: Yes. I take it that the Gotovina Defence will wait
13 until it has received the written filing and then take a position on
15 MR. MISETIC: Yes, except for the last portion, I think we would
16 object if they had an interest in the witness's personnel file. He was
17 their witness on direct, and it should have been tendered at that time.
18 JUDGE ORIE: Mr. Russo.
19 MR. RUSSO: The point being that we couldn't get it by that time.
20 We still haven't received it.
21 MR. MISETIC: I think, Mr. President, with all due respect if
22 Mr. Russo can confirm that they asked for the personnel file before the
23 witness testified.
24 MR. RUSSO: On that, I can't be positive, Mr. President, but I
25 will certainly check on that.
1 JUDGE ORIE: Sometimes matters come up, but the Chamber will
2 consider whether -- what to do with that, once it has seen all the -- the
3 submissions by both parties.
4 As far as discussions on these kind of matters are concerned,
5 during the recess, most of the Judges can be reached, if urgent matters
6 are to be decided upon. At the same time, Judges, as all lawyers would
7 like to enjoy some of their holidays as well.
8 MR. MISETIC: On that optimistic note, Mr. President, I wanted to
9 make an oral motion along the exact same lines as what we did last year
10 at the break concerning the time for filing responses, and ask orally
11 move that the same procedure as appears at transcript page 7204,
12 beginning at line 2, apply now with respect to the time to file responses
13 to any motions that are filed.
14 JUDGE ORIE: First of all, we look up page 7204.
15 If there could be agreement between the parties on these matters,
16 then, of course, we'd like to hear from you.
17 I move to my -- having dealt with scheduling issues, I'll move to
18 the next item on my agenda. The Chamber would like to deliver its
19 decision on admitting Exhibits D1540, D1541, D1542, D1544, D1545, D1546
20 D1551, D1552, and D1567.
21 On the 30th of June of this year, the Gotovina Defence tendered
22 the following documents: D1540 through D1546. The Prosecution objected
23 to their admission. On the same day, the Chamber invited the parties to
24 make written submissions on the admissibility of those documents, which
25 are Official Notes taken by the Zadar-Knin crime police department in
1 1995. D1546 also contains a statement signed by an interviewee. All of
2 this can be found between transcript pages 19478 and 19503.
3 On the 1st of July, the Gotovina Defence further tendered D1551
4 and D1552, which the Chamber included in its previous invitation to make
5 written submissions. This can be found at pages 19596 and 19597.
6 On the 2nd of July, 2009, D1567 was similarly tendered and added
7 to the invitation. This can be found at transcript page 19716.
8 On the 3rd of July, 2009, both the Prosecution and the
9 Gotovina Defence filed their submissions. The Prosecution no longer
10 objected to the admission of documents D1542 and D1546. The parties did
11 not address D1551 and D1552 in their submissions.
12 In its submissions, the Prosecution objected to the admission of
13 the documents into evidence because they are statements of witnesses on
14 the Gotovina Defence's witness list, and the Prosecution was informed
15 that the Gotovina Defence no longer intended to call those witnesses to
16 testify. The Prosecution submitted that the Gotovina Defence, by
17 tendering those documents into evidence, was circumventing its decision
18 not to call the witnesses, making reference to an oral decision the
19 Chamber rendered on the 19th of November, 2008. That decision ordered
20 the redaction of two paragraphs in William Hayden's statements that
21 referred to the evidence of Colonel Hjertnes. In that particular case,
22 the Chamber found it inappropriate to admit those portions into evidence.
23 The present case differs in two significant respects. Firstly,
24 the redacted statements were obtained for the purpose of judicial
25 proceedings before this Tribunal, while the tendered documents are
1 contemporaneous out of court statements prepared by non-parties and not
2 taken for the purpose of the Tribunal's proceedings. Secondly, in the
3 previous instances, there had been a dispute amongst the parties about
4 whether Colonel Hjertnes, who made the later redacted statements, should
5 be withdrawn. On the 10th of March, 2008, despite objections of the
6 Gotovina Defence, the Chamber allowed the Prosecution to remove
7 Colonel Hjertnes from the witness list. It was in light of this dispute
8 that the Chamber found it inappropriate to include portions of documents
9 which referred to Colonel Hjertnes's withdrawn evidence. The Chamber did
10 not make a general finding according to which the withdrawal of a witness
11 from a witness list would preclude the admission into evidence of
12 documents referring to the withdrawn evidence. In here relevant respect,
13 the Chamber finds little merit in the analogy with the 19th of
14 November 2008 decision as proposed by the Prosecution.
15 The Chamber notes that it has previously admitted several
16 Official Notes. In its 30th January 2009 decision, the Chamber
17 determined that Official Notes may be admitted if they meet the
18 requirements of Rule 89(C) and (D). That is, if the documents are
19 relevant and of probative value, and the probative value is not
20 substantially outweighed by the need to ensure a fair trial. In the
21 present case, no argument was advanced by the Prosecution challenging
22 either the relevance or the probative value of the documents. The
23 Gotovina Defence explained that it tendered the documents to show
24 investigative steps taken by the Croatian civilian authorities with
25 regard to incidents of killing, burning, and looting after
1 Operation Storm. On the basis of this argument, and having examined the
2 documents, the Chamber is satisfied that these contemporaneous official
3 Croatian MUP documents satisfy the requirements for admission under
4 Rules 89(C) and (D) of the Rules. The Chamber, therefore, admits into
5 evidence D1540, D1541, 42, 44, 45, 46, D1551, 52, and D1567. The Chamber
6 emphasises that the admission into evidence of these documents is in no
7 way an indication of the weight, if any, which the Chamber may ultimately
8 attach to them.
9 And this concludes the Chamber's decision to admit the
10 aforementioned documents into evidence.
11 For the next item, we briefly have to move into private session.
12 [Private session]
6 [Open session]
7 THE REGISTRAR: Your Honours, we're back in open session.
8 JUDGE ORIE: Thank you, Mr. Registrar.
9 The Chamber lifts the confidentiality of the Trial Chamber's
10 decision on motion for provision release. This decision is dated the
11 2nd of December 2008 and concerns Mr. Cermak.
12 I move to the next item on my agenda.
13 The Gotovina Defence wanted to rely on 1D588, which is the
14 Prosecution's pre-trial brief in Stanisic and Simatovic. That is what we
15 understood that the Gotovina Defence wanted to do, and we will see what
16 formal follow up should be given to that.
17 MR. MISETIC: Yes. Mr. President, if I could just make one
18 correction, that 1D588 is the full pre-trial brief in agreement with the
19 Prosecution. We have redacted portions of that brief to make it as
20 relevant as possible to this case, and the redacted the version of that
21 brief is now 1D2782.
22 JUDGE ORIE: Yes. Apparently you have discussed the matter. You
23 want to tender this into evidence. In view of the fact that you have
24 discussed the matters with the Prosecution, does that mean that there's
25 no objection or ...
1 MR. HEDARALY: That is correct, Your Honour. We don't object to
2 those portions of the Prosecution's -- the Prosecution's pre-trial brief
3 in that case to be admitted into evidence.
4 JUDGE ORIE: Yes. The Chamber wondered, in view of the fact that
5 there is no objection to it, that to admit into evidence the parts of a
6 pre-trial brief, of course, raises the issue what exactly the parties
7 were seeking with that. And I think it's clear that the Gotovina Defence
8 sought those portions to be in evidence, in order to have the Chamber
9 look at the consistency of the positions taken by the Prosecution in the
10 Stanisic/Simatovic case and the present case.
11 Is that --
12 MR. MISETIC: Actually --
13 JUDGE ORIE: Mr. Misetic.
14 MR. MISETIC: -- the way things transpired is we proposed those
15 portions to be stipulated as agreed facts between the parties. The
16 Prosecution has, for its own reasons, asked that it not be done as a
17 stipulation of agreed facts but that we tender it into evidence in the
18 form that we are now tendering it into evidence. I would leave it my
19 colleagues on the Prosecution side if there is any further issue
20 regarding the form to address the matter. But from our perspective, we
21 first wanted it as stipulation of agreed facts. And in discussions with
22 our colleagues on the other side of the isle, we have agreed to
23 accommodate them by tendering it in this form.
24 JUDGE ORIE: Yes. So it went further, it went to the truth of
25 the content.
1 MR. MISETIC: Yes, Mr. President.
2 JUDGE ORIE: Yes. And apparently there is no agreement on the
3 truth of the content such that could be submitted to this Chamber as
4 agreed facts.
5 MR. MISETIC: I would leave it the Prosecution to --
6 JUDGE ORIE: Mr. Hedaraly.
7 MR. HEDARALY: I think -- I think, Mr. President, that the
8 Chamber can appreciate the situation that these are allegations that the
9 Prosecution has made in another case that it intends to prove in that
10 case, and we were just uncomfortable with, at this stage, having one
11 Chamber essentially agree to those facts and say that these, in fact,
12 occurred, when these are the subject of another case where we will be
13 seeking to prove those facts, and that's why -- of course, we don't --
14 those are facts we intend to prove in another case so we don't disagree
15 with them, but, procedurally speaking, it seemed to be a bit of a strange
16 situation. And that's why we propose to have it this way, so that at
17 least it is clear that these are allegations that the Prosecution intends
18 to prove in that case, but this is what they are.
19 JUDGE ORIE: Yes. You would say if you would fail to offer
20 sufficient evidence of those facts, that would you reconsider your
21 position as to whether these are true facts or not.
22 MR. HEDARALY: That is correct, Mr. President.
23 JUDGE ORIE: There is no disagreement, from what I understand,
24 that those portions were presented as the position of the Prosecution in
25 that other case.
1 MR. HEDARALY: That is correct, indeed. And just the last issue
2 on the -- on the stipulation was that when we were approached to
3 stipulate to those facts, the reason also is, if you remember, we have
4 raised a few relevance objections to it, so we did not want to be the
5 proponents of the fact. That's why we propose that the Defence tenders
6 them, and we will not object based on the Chamber's guidance and rulings
7 we have received previously about matter that we believe are, at best,
8 only peripherally relevant to this case.
9 JUDGE ORIE: Thank you.
10 Mr. Misetic, any further -- thank you.
11 [Trial Chamber confers]
12 JUDGE ORIE: Mr. Registrar, could you please assign a number to
14 THE REGISTRAR: Your Honours, that becomes Exhibit D1625.
15 JUDGE ORIE: Mr. Misetic.
16 MR. MISETIC: 1D2782.
17 JUDGE ORIE: 1D2782. I'm always a bit puzzled because I thought
18 that numbers would always have the same number of digits and -- but
19 perhaps in 1D588, a zero is missing after the D. It's not. So they have
20 -- if everyone understands, we're talking about ...
21 MR. MISETIC: I'm advised that it does not have to,
22 Mr. President. Have four digits, but ...
23 JUDGE ORIE: Okay. Fine. We are talking, whatever the number
24 is, about portions of the Prosecution's pre-trial brief in the Stanisic
25 and Simatovic case.
1 Mr. Registrar.
2 THE REGISTRAR: Your Honours, that's 65 ter 1D2782, and it
3 becomes Exhibit D1625.
4 JUDGE ORIE: And is admitted into evidence. The Chamber
5 appreciates the explanation the parties have given on how they -- from
6 what angle they consider this exhibit.
7 I would again like to go into private session for some moments.
8 [Private session]
11 Pages 20687-20690 redacted. Private session.
16 [Open session]
17 THE REGISTRAR: Your Honours, we're back in open session.
18 JUDGE ORIE: Thank you, Mr. Registrar.
19 The Prosecution has indicated that it would like to address the
20 issue of Defence disclosure obligations in relation to expert witnesses.
21 Mr. Russo, is it you who will address the Chamber?
22 MR. RUSSO: Yes, Mr. President.
23 Mr. President, let me -- this is a rather lengthy history. I
24 will try to cut it down.
25 Basically what the Prosecution is looking for from the Defence is
1 -- are three things at this point. We asked for more in the past, but we
2 sort of whittled our interest down to three main things. Number one, a
3 list of all of the information; that includes evidence, documents, or any
4 other kind of information provided to each witness. Secondly, being any
5 communications or all communications had between the Defence and their
6 expert witnesses. And, thirdly, the draft -- any draft reports submitted
7 by the experts to the Defence teams or vice versa as we heard in regard
8 to the witness yesterday.
9 Now, Mr. President, we fully understand the Defence`s position
10 that there is no particular rule under which this material was requested.
11 However, the basis for our request is simply that this -- and I believe
12 we included this on the e-mail that was forwarded to Chambers, these are
13 proper matters for cross-examination. The material that the witness
14 reviewed, what they were told by the Defence, what they said to the
15 Defence, any previous positions or changes they may have made in their
16 reports, all proper areas for investigation on the cross-examination.
17 We're simply trying to cut down the amount of time we have to spend with
18 the witnesses on the stand, pulling this information out of them, when,
19 if it is provided to us in advance, to could very easily become a
20 non-issue for us.
21 I can go through the history of our request for this, but suffice
22 it to say that we asked for this material on the 6th of May, and then a
23 follow-up, bit of a broader request on 7th of May, and we've been back
24 and forth on the issue as the Court has seen through correspondence since
25 then. We were provided with correspondence between the Gotovina Defence
1 and Witness Cross, prior to his arrival on the stand which we were
2 certainly appreciative of. Of course, we didn't get everything we asked
3 for, but we understood that to mean that there would be such disclosures
4 with regard to other witnesses. We couldn't get a definite answer on
5 that. We did also have some discussions the other day with respect to
6 Professor Corn's information, and we were told that we might receive a
7 list of exhibits that will be used with him during cross-examination, and
8 advisement as to whether that -- I'm sorry. On direct examination, an
9 advisement as to whether that list encompasses what was shown to him
10 prior to or whether it does not. However we would much prefer simply a
11 transparent list for each witness of the documents or information given
12 to them in order for them to prepare the reports or subsequently to that.
13 The issue of draft reports and communications is attendant also for the
14 same considerations.
15 JUDGE ORIE: Thank you, Mr. Russo.
16 Mr. Kehoe.
17 MR. KEHOE: Mr. President, what I did some time ago is invite
18 Mr. Russo to put his position in writing. We have fulfilled our
19 obligations under Rule 97 concerning what we had to turn over to them.
20 It is interesting to -- 67 excuse me, under Rule 67. It is interesting
21 to note somewhat of an inconsistent position taken by the Prosecution on
22 the disclosure of expert materials. Nevertheless there is a different
23 obligation on the Prosecution --
24 JUDGE ORIE: If I would invite to you slow down. You wouldn't
25 mind, would you.
1 MR. KEHOE: Yes. Sorry, Mr. President. Sorry to the
3 There is clearly different disclosure obligations on the
4 Prosecution under Rule 66 and 68, as opposed to what the disclosure
5 obligations by the Defence under Rule 67. That being said, we invited
6 the Prosecution to lay out their concerns and their legal basis for their
7 request. And we would answer that request, and we invite them to do that
8 once again. This is circumscribed by the rules. I hasten to add that
9 Mr. Russo, himself, when we invited or asked the Court in the interest of
10 justice to tell Mr. Russo to put his case concerning shelling to
11 Mr. Rajcic, Mr. Russo said that Rule 90(H) only applies to
12 cross-examination and not to direct examination. And as a result of that
13 Rule, there was no basis upon which for him to require the Prosecution to
14 put his case to the witness.
15 THE INTERPRETER: The interpreters kindly ask to you slow down.
16 MR. KEHOE: My apologies again.
17 The answer to this, is quite simple. It falls within the four
18 corners of Rule 67. We have complied with the Rule 67, and we will
19 continue to comply with Rule 67. And we welcome the opportunity to
20 answer any submission given to the Court by the Prosecution on this
22 And again, my apologies to the interpreters for speaking so
23 quickly. If I might have one moment.
24 I'm reminded of one last fact by my colleague Mr. Misetic. And
25 than is the position of the Prosecution today, in this case and others,
1 is that they have no obligation to disclose communications with their
2 witnesses, be it experts or otherwise.
3 So given these positions, and given the inconsistent approach
4 taken by the Prosecution in this case, we invited the Prosecution to make
5 a submission to the Court, cite the legal basis upon which they request
6 this information, and allow the Defence the appropriate time to respond
7 as we, of course, will.
8 Thank you, Mr. President.
9 JUDGE ORIE: Thank you, Mr. Kehoe.
10 Mr. Russo.
11 MR. RUSSO: Very briefly, Mr. President.
12 First of all, regarding the allegation of an inconsistent
13 position, I want to be clear, with respect to Lieutenant-Colonel Konings,
14 I did provide the draft reports in advance of the witness coming. I did
15 provide and in fact file with the addendum the list of material given to
16 Lieutenant-Colonel Konings, and I did provide all communications we had
17 with Lieutenant-Colonel Konings.
18 So there is no inconsistency in that position.
19 I'm not sure what the Rajcic 90(H) issue relates to, so I will
20 simply pass that up. But with respect to any obligations, I have already
21 made clear that we're not stating that this is an absolute obligation on
22 the part of Defence under a particular rule to provide us with this
23 information. We're asking for it in the interests of judicial economy.
24 And if you want to basis, I can say Article 20 requires a fair and
25 expeditious proceeding, but I don't think it is necessary to go that far.
1 I think this is simply a matter of attempting to save time for both the
2 Defence and the Court and all others concerned.
3 But beyond that, Mr. President, since we were asking for this
4 material for quite a lot of time and were not getting what we asked for,
5 we simply went or attempted to go directly to the witnesses. I spoke to
6 General Cross. I agreed to give me what I asked for. And he did in fact
7 provide me with a PowerPoint presentation upon which he used -- based his
8 initial report. But he a discussion with the Defence notice meantime,
9 and they told him that - this is what he told me - that they would take
10 care of the disclosure. So we attempted to get it directly from the
11 witness, which I believe we're entitled to do. But if the Defence
12 chooses to intervene and take responsibility for the disclosure, then I
13 believe they do have some obligation to do it, or at least not attempt to
14 interfere with us getting it directly from the witness.
15 But that being said, Mr. President, I did put this position in
16 writing as the Court can see from the e-mail which was forwarded to
17 Chambers. I told Mr. Kehoe that our position was that this was material
18 which is the proper subject of cross-examination and we were seeking this
19 material for purposes of judicial economy.
20 JUDGE ORIE: Brief response, Mr. Kehoe.
21 MR. KEHOE: Very brief. The response to General Cross as to
22 every witness is that the disclosures would be made pursuant to the
23 Rules. Quite simply that. That was fertile area for cross-examination
24 by Mr. Hedaraly, as well it should have been. That doesn't, doesn't
25 circumvent the Rule in which sets out the Defence's required disclosures
1 under Rule 67.
2 Now, with regard to the documents that are going to be used, we
3 are going to give them and have given with regard to -- well, certainly
4 cross and Corn, all of the documents that could be potentially used with
5 Professor Corn. That includes those he looked in to rely on and those
6 that he just examined and didn't rely on. Which, frankly, are fertile
7 areas for cross-examination by the Prosecution.
8 Now my reference to the Rule 94(H) was simply this: The Rule is
9 the Rule. When the Prosecution saw fit to rely on the rules to get what
10 they wanted, they responded that Rule 94(H) didn't require them to cross
11 during their direct case. We are simply asking the Chamber to comply
12 with the Rules, and we will disclose our obligations under Rule 67, and
13 it's simple as that. My analogy to Rule 94 was nothing more than that.
14 Excuse me, Rule 90(H) was nothing more than that. And that's the simple
15 response, Mr. President.
16 JUDGE ORIE: Thank you, Mr. Kehoe. Of course, a reference to
17 simplicity always triggers -- if matter are as simple as that, one would
18 wonder why Mr. Russo doesn't see that.
19 Is there any of the other parties who would like to --
20 MR. KAY: Your Honour, this is an issue that in our submission
21 covers all of the interests of the Defence parties. It has arisen in the
22 Gotovina case, and the issues have been discussed between the Prosecution
23 and counsel for General Gotovina. But, of course, there are
24 repercussions for the remaining Defence teams.
25 Your Honour, the issue in our submission was very clearly set out
1 by the Prosecution team themselves in their filing on the 18th of
2 November, 2008. The Prosecution response to the Gotovina Defence motion
3 to compel the disclosure of draft expert report of Reynaud Theunens.
4 It's perhaps interesting to recollect how this issue arose.
5 Mr. Theunens was interviewed by the Gotovina Defence team prior to his
6 giving evidence. He revealed, because the trial for this case was
7 originally scheduled at a much earlier date, that he had presented a
8 report to the Prosecution very few weeks before the original trial date
9 of this case. They asked him if they could see that report, and he was
10 willing to disclose it to them.
11 This case was then put back, and we know that the Theunens expert
12 report was filed on a later date, and that report contained significant
13 changes, so far as we were concerned, in relation to his expertise
14 concerning the position, role, and involvement of Mr. Cermak in this
16 For my part, I had made no applications for Theunens's
17 disclosures of drafts. Any matters that I would have dealt with would
18 have been in cross-examination. So what arose did not come about as a
19 result of anything said by me.
20 When this issue was discussed in open court, Your Honour was
21 aware of issues concerning legal professional privilege, that was
22 documented in the transcript. Your Honour was aware of other issues that
23 there had been no decision on this matter within the Tribunal
24 jurisprudence, and both parties agreed on that. And then the matter was
25 left at that. And Mr. Theunens was asked by Your Honour, and he
1 voluntarily said that he would deliver that draft, and in fact it turned
2 out there were three, four, or five versions, and they were disclosed to
3 the Defence by Mr. Russo.
4 The position, as I saw it then, having then seen the content of
5 Mr. Theunens's draft, that this material fell fairly and squarely within
6 Rule 68. It was material that was exculpatory; it was material that
7 contradicted the Prosecution case, capable even going to mitigation of
8 guilt, whatever expression it was. And, of course, this witness was an
9 employee of the Prosecution, used as an expert, and of particular
10 interest to the Defence, as a result of his relationship with his
12 So there it was. In the filing by the Prosecution that was made
13 and in all their arguments, they made clear that their position was that
14 they were only obliged to disclose materials within the Rules, and it was
15 stated that, in paragraph 10 of the filing of the 18th of November, that
16 having reviewed their materials, they said that there was nothing to
17 trigger disclosure obligations under Rule 68. There are no such
18 circumstances here.
19 Well, in the outcome of the event, we were very concerned,
20 because we disagree with that, and the impact of Mr. Theunens's
21 statements which were dealt with in cross-examination, we submit clearly
22 went to the issues within Rule 68.
23 Our submission is, on this matter, that, in terms of documents
24 considered by an expert, taking our example, our experts have -- have
25 been given free range to look at any document they want within the
1 database, within the materials of the Prosecution, Defence, anything.
2 And we haven't constrained them. They have been allowed to work on their
3 own in an office and look at materials, and, so, for my part, I couldn't
4 tell you what they'd looked at because it is simply endless.
5 If you make a position with Mr. Theunens, there has been no
6 disclosure to us of what he looked at. Your Honour will remember the
7 description of his task to me that he was considering documents, and they
8 popped up on the screen or they didn't pop up on the screen. I just use
9 that as an expression, because this is the reality of how it works, and
10 how people inform themselves and brief themselves as to what they see and
11 how they construct a report.
12 In relation to communications, well these are plainly covered by
13 legal professional privilege. I have no reason to hide behind that, but
14 I'm making this as a stand because this is an important principle of law
15 litigated in this Tribunal in the very first case of Tadic concerning the
16 impact of legal professional privilege, and it is a matter upon which the
17 whole structure of legal systems are built. And I'm not going to be the
18 advocate who starts conceding on such a matter.
19 In relation to drafts and opinions, a draft can exist probably
20 100 times a day. Any change you make to a document means that a document
21 is moved from one state to another. In our submission, that is, in these
22 technological days, something impossible to capture. The issue on
23 Theunens, however, was because he had submitted a report as an expert,
24 and that was what the Gotovina team were particularly interested in. It
25 was given a title, a draft. I don't know whether it was meant to be a --
1 a preliminary report, a report at all, or a draft.
2 That was just how that played out. Sometimes in litigation that
3 is what happens. But in our submission, there is no requirement for the
4 Defence to supply the Prosecution with drafts. They must do their job by
5 cross-examination of a witness, ask him if he has always consistently
6 held a point of view. If he says yes, investigate. If he says, no,
7 well, where was your previous point of view? These are matters of
8 cross-examination rather than disclosure, and, in our submission, we do
9 no more than is necessary under our disclosure obligations within the
10 Rules, which strive to comply with. And that's what we submit is the
11 proper basis for litigation between the parties.
12 Your Honour, those are my submissions.
13 JUDGE ORIE: Thank you, Mr. Kay.
14 Anything the Markac Defence would like to add?
15 MR. MIKULICIC: Yes, Your Honour. In order to be being
16 repetitive as my learned friend before me stressed the situation, I would
17 only quote my learned friend Mr. Russo from the OTP, page 21, line 20:
18 "There is no particular rule under which the requested material
19 should be presented to the Office of the Prosecutor."
20 JUDGE ORIE: Thank you.
21 Mr. Misetic.
22 MR. MISETIC: If could I just make one point for the record,
23 Mr. President.
24 Mr. Russo stated that we had interfered in some communication he
25 had with Witness Cross. We received an e-mail communication between
1 Witness Cross and Mr. Russo. As far as I know, the documents that
2 Mr. Cross indicated would be provided to Mr. Russo were provided to him,
3 and if they weren't, we weren't subsequently told by Mr. Russo that there
4 was something in addition that was missing from whatever his agreement
5 was with Mr. Cross. I just wanted to be clear on that point.
6 JUDGE ORIE: The Chamber will consider whether it will ask for
7 further written submissions on the matter. This may, however, be clear
8 that there are several elements involved in this discussion. One is, and
9 that's the one that has been stressed at least this morning very much by
10 Mr. Kehoe, is disclosure obligations. There are, however, other aspects
11 as well, such as for a Chamber to evaluate the probative value of an
12 expert report, and I think we can find this in the case law of this
13 Tribunal as well, it is important to know what sources were used by that
14 expert, what methodology he applied. So, therefore, apart from whether
15 there is any disclosure obligation, let's just, for argument's sake,
16 assume, which I think has not happened until now, that it would be
17 unclear what sources were given to or were used, whether they popped up
18 or not on the screen of the expert, then, of course, it would be very
19 difficult to assess to what extent the special skills, the special
20 expertise of the expert would have been properly applied on relevant,
21 factual material.
22 Now, what we've seen in the past is that -- let me add a third
23 issue. That is, the genesis of a report I think everyone would agree
24 with Mr. Kay that what is a draft, of course, it changes every minute not
25 only in expert reports but even drafts for decisions. At the same time
1 there comes a moment when the content of the draft is shared with another
2 person, another draft, which opens possibilities for exchanges, which can
3 - I emphasise the word "can" - have an influence on the next draft.
4 Therefore -- and that's different for all of the expert reports. The
5 genesis of those reports have sometimes triggered full attention, whereas
6 in other circumstances, no one seemed to be very much interested in it,
7 whether the expert is working on his desk, see what pops up on his
8 screen, or whether he has a discussion with members of a team of a party
9 who then provide a first draft based on those conversations, might be an
10 element which could have some importance in evaluating.
11 So we've seen that apart from the disclosure obligations, there's
12 more involved. That is, the understanding, full understanding, and
13 there, of course, is a difference between a witness and an expert, a full
14 understanding as to how these opinions came into being on the basis of
15 what facts provided, on the basis of what -- on the basis of what series
16 of documents being made available, or we do not know, then -- at least we
17 could ask the expert whether he used them all or whether he stopped
18 halfway or -- these are important matters not only from a point of view
19 of disclosure but also important matters in view much evaluation,
20 evidentiary evaluation of the expert report.
21 Finally, there's a third element; that is, judicial economy.
22 That is, if you have not available to yourself already some of the
23 relevant data, it might take quite a bit of time in court to explore
24 these matters with, as a possible result, that finally, they turned out
25 not to be relevant. Mr. Kay very much emphasised the importance of
1 cross-examination. These are the three elements. That is, disclosure;
2 second, the proper evaluation of what the expert report brings us; and
3 the third is judicial economy.
4 We're not going at this moment, of course, to decide on the
5 matter. What I will discuss with my colleagues is whether we think that
6 we have received sufficient information on this issue, that sufficient
7 argument has been raised, or whether we would give an opportunity to --
8 or even ask the parties to make written submissions on the matter.
9 We'll have a break, although I was confident that we might do in
10 one session, we'll certainly conclude in the next session.
11 We will have a break, and we will resume at 1.00.
12 --- Recess taken at 12.32 p.m.
13 --- On resuming at 1.03 p.m.
14 JUDGE ORIE: During the break, the Chamber has considered whether
15 it will ask the parties to make any further written submissions on the
16 matter of disclosure of material, in relation to expert witnesses. The
17 Chamber is not asking the parties to do so, which would not prevent them,
18 perhaps, from making further submissions, but we're not inviting the
19 parties. If, however, a party would like to make further submissions,
20 then we'd like to receive them in two days -- in one week from today, so
21 that it doesn't come at the end.
22 Further, Mr. Kay, you have referred to professional secrecy in
23 the Tadic case. Well, I'm not pretending any ignorance on what may have
24 happened in that case. If would you have specific references to either
25 transcript pages and/or decisions, that would be appreciated.
1 MR. KAY: Right. Yeah, I don't have those to hand. The issue
2 was the disclosure of Defence witness statements.
3 JUDGE ORIE: Witness statements.
4 MR. KAY: Yes.
5 JUDGE ORIE: Yes. I -- then that's clear. That's where I think
6 the Trial Chamber, at the time, took approximately half a year before it
7 rendered its written decision on the matter.
8 MR. KAY: The proceedings were suspended for a week, and it came
9 at the stage where the Defence had called its first live witness.
10 Mr. Tieger got up and asked for the disclosure of Defence witness
11 statements. No notice having been given. We asked for an adjournment --
12 JUDGE ORIE: Mr. Kay, it is clear what exactly you're referring
13 to --
14 MR. KAY: Yes.
15 JUDGE ORIE: -- in this respect to me, so we'll find --
16 MR. KAY: Yes.
17 JUDGE ORIE: [Overlapping speakers] ... of course, there have
18 been -- I think it at was more than one occasion that provisional secrecy
19 played a role, but it's clear to me now at least to what instance you're
20 referring to.
21 MR. KAY: Yes.
22 JUDGE ORIE: Then I'd like to move on -- no, perhaps, first, have
23 the parties considered the extension of time-limits?
24 MR. HEDARALY: That is fine, Your Honour, to have the three
25 weeks, as it was -- for the previous recess. The only thing is if there
1 would be a submission on the issue of expert disclosures, then that --
2 I'm not saying we will file something, but to the extent there would be
3 submission on that, then we would ask that the two weeks response time
4 stay there because of the urgency of the issue, if there would be to be
5 submissions, which I'm not sure there will be.
6 JUDGE ORIE: Yes. We looked up the relevant page of last year,
7 and I see that already at that time the issue was raised on when a motion
8 would be filed one day before the expiration of the non-sitting weeks
9 that that might be a bit too much then also to grant three weeks.
10 We have a rather tight schedule after the recess period, so,
11 therefore, where the parties are seeking the same, it will almost be the
12 same as last year.
13 [Trial Chamber confers]
14 JUDGE ORIE: The Chamber rules that the 14 days' time-limit
15 usually applicable for responses is, as of today, under Rule 126 bis is
16 generally extended to three weeks, and this ruling is valid for any
17 motion filed as of today until the 14th of August, which is the last day
18 of the formal recess. So not to the last non-sitting day but until the
19 -- any filing on or before the 14th of August. Nevertheless, the parties
20 are invited, if a motion is filed on the 14th, then the response is due
21 on the 4th of September. If a motion would be filed on the 17th, then
22 the response would be due on the 31st of August, so we see that there is
23 a bit of an overlap. The Chamber reserves its position as to shorten
24 those terms that would bring us into September because it is filing of
25 the last one or two days of the recess period, depending on the subject
1 matter of that motion. Of course, in general terms, the Chamber will
2 consider whether there is any reason to even also to shorten time-limits
3 for responses, depending on the subject matter. But this, at least,
4 gives some air to the parties as a general starting point.
5 Then next item on my agenda, D1607, the 92 ter statement of
6 Witness Sterc.
7 Has that been uploaded in e-court in accordance with the partial
9 MR. MISETIC: Yes, Mr. President.
10 JUDGE ORIE: Thank you for that information.
11 We have another few subpoena issues to deal with, out-standing
12 subpoena issues for which we'll go into private session.
13 [Private session]
21 [Open session]
22 THE REGISTRAR: Your Honours, we're back in open session.
23 JUDGE ORIE: Thank you, Mr. Registrar.
24 The next item is about the EUMM documents.
25 The Chamber would like to inform the parties that it has not yet
1 received any response on its invitation from the EUMM, an invitation
2 dated the 19th of June, and that the Chamber intends, at this moment, to
3 send a message to the EUMM that it would be appreciated to receive a
4 response not later than the 14th of August.
5 If, meanwhile, the Gotovina Defence would have any further
6 follow-up information for the Chamber, as to how the communications with
7 the EUMM develops since then, it would be the appropriate time hear from
9 MR. MISETIC: Yes, Mr. President. We, pursuant to the Chamber's
10 invitation, did retrieve some of the documents from Brussels, other
11 documents as you know were provided by the Prosecution. There are still,
12 I believe three documents in the Chamber's invitation that still have not
13 been produced. We are interested in obtaining a response from the EUMM
14 on those documents. The reason being that based on the information
15 provided by the Prosecution, we believe that some of the documents were
16 in possession of private persons. To the extent that the EU can give us
17 additional information even based on the three remaining documents as to
18 what other persons may have been or may be in private possession of the
19 documents, that would be information that we would need in order to
20 pursue retrieval. In particular, I think we've made clear of the ECMM
21 log books in RC Knin, and for that purpose we would ask that the three
22 remaining documents, that we get some information from the EU as to where
23 those documents might be.
24 JUDGE ORIE: Yes. That's three out of the limited number of
25 documents that were specifically addressed in the invitation.
1 MR. MISETIC: That is correct.
2 JUDGE ORIE: Yes, thank you. We'll keep this in mind when
3 formulating any further communication with the EUMM.
4 Any other party, any observations in respect of this?
5 Then the next item is about documents MFI'd, P2547, 2548, 2549,
6 and 2551. These exhibits were tendered by the Prosecution in
7 cross-examination of Witness Boris Milas. The -- with the exception of
8 P2548, the admission into evidence of these documents is denied, because
9 the relevance and probative value of these documents does not meet the
10 standards of Rule 89(C).
11 P2548 is admitted into evidence.
12 I come to my next item, which is the submission of the
13 de la Brosse expert report. The Gotovina Defence seeks it to be admitted
14 -- no, doesn't seek it to be admitted, but invites the Chamber to take
15 judicial notice of this report. Another way of introducing it would be
16 to submit it as an expert report, seek the position of the Prosecution as
17 to the qualifications of the expert, relevance, and whether it accepts
18 the report or not, or whether the Prosecution seeks the expert to appear
19 as a -- to appear for cross-examination.
20 The taking of judicial notice of documents is not an
21 uncontroversial issue, whether it goes to the content of it, or whether
22 it's primarily meant to provide for a remedy if there are any
23 authenticity concerns about documents.
24 Have the parties considered or has the Gotovina Defence
25 considered to seek admission of the document under Rule 94 bis, I think
1 it is?
2 MR. MISETIC: We've considered it, Mr. President. If necessary,
3 we will proceed under the Rule. However, the reason we thought judicial
4 notice or Rule 94 might be particularly appropriate here is that it's a
5 document tendered by the other side in a particular case, so we thought
6 there wouldn't be issues of the qualifications of the witness or the
7 credibility of what's contained in the report. However, if there is
8 going to be an issue on that point, then we are prepared, if necessary,
9 to refile it and --
10 JUDGE ORIE: But if there is no issue taken with it, then
11 admission under Rule 94 bis might equally well serve the purpose as to
12 take judicial notice of it.
13 MR. MISETIC: Yes, that's correct, and we refile it -- if the
14 Chamber wishes, we'll do that as well. Obviously our intention is to
15 rely on the substance of the report, not just that there was a report
16 filed in another case.
17 JUDGE ORIE: No. And -- well, to take judicial notice of
18 documents, of exhibits, I know that it's -- in the rule, creates more
19 questions than it answers, I'm afraid. Therefore, as I said before, it
20 is not an uncontroversial issue. Therefore, the Chamber would prefer to
21 have this matter be dealt with under Rule -- I always forget. 94 bis is
22 the expert reports.
23 As far as timing is concerned, I take it that since the report
24 was produced in another case before by the Prosecution, I think that that
25 might not be a great problem.
1 MR. RUSSO: Mr. President, we will respond. If there is a 94 bis
2 filing we will respond to that. However, I can't say for certain that we
3 won't object under 94 bis with regard to relevance. That is still to be
4 determined. I'm not saying that we're going to -- issues of
5 qualification, of course, are not going to be objectionable, but there
6 are other areas under 94 bis under which we might wish to respond.
7 JUDGE ORIE: Yes, and having extended the time-limit -- well, I
8 don't think that we could expect a motion today. But perhaps could you
9 give it already some thought, because, well, with some imagination you
10 could expect what the motion under Rule 94 bis would tell you.
11 Is there any way that the Defence -- that the Prosecution could
12 -- or would you need the full three weeks, Mr. Russo?
13 MR. RUSSO: Mr. President, I don't believe we would need the full
14 three weeks. We will file a submission on an expedited basis.
15 JUDGE ORIE: Thank you very much.
16 MR. MISETIC: Mr. President, with your leave if we could just
17 file a notice indicating that we're -- that the report that was filed, I
18 believe, yesterday or the day before yesterday, is now being filed
19 pursuant to Rule 94 bis, so as to save us filing another 100 pages.
20 JUDGE ORIE: Yes. I don't think that there is any need to have
21 it all copied again and that you change the basis under the Rules under
22 which this report is filed now to 94 bis, rather than Rule 94. That's on
23 the record.
24 I think the only matter, then, remaining is that we could try to
25 shorten the MFI
1 other procedural matter the parties would like to raise at this moment?
2 If not, let's see whether we can cut off some of the MFI list.
3 The first one on my list is D1083. I do understand that a final
4 translation has been uploaded by now.
5 Mr. Mikulicic, I see you nodding yes.
6 MR. MIKULICIC: Yes, Your Honour, we agreed upon this with OTP.
7 And as I have been instructed, this is only matter of time when the final
8 translation would be uploaded due to the technicals issues that --
9 JUDGE ORIE: Yes --
10 MR. MIKULICIC: -- has to be completed.
11 JUDGE ORIE: Yes, but there is agreement on the translation;
12 there's no objection against admission.
13 MR. MIKULICIC: That's correct, Your Honour.
14 JUDGE ORIE: Under those circumstances, if it is already in the
15 hands of the technicians, under those circumstances in the expectation
16 that upload would go be completed shortly, the Chamber admits into
17 evidence D1083.
18 If anything happens which in any way interferes with the
19 uploading, Mr. Mikulicic, it would be your duty do inform the Chamber.
20 MR. MIKULICIC: I understand, Your Honour. Thank you.
21 JUDGE ORIE: Thank you.
22 The next one is D1460. Gotovina Defence would review the maps
23 and ensure that all the targets from the Jagoda target list would -- are
24 depicted on the maps and that they are all correct.
25 On the 22nd of May the Gotovina Defence and the Prosecution
1 agreed on the updated maps, and it was a matter of updating those maps
2 into e-court
3 Has this been completed?
4 MR. KEHOE: Mr. President, we have done that, and we provided it
5 to Mr. Russo, albeit somewhat late, but I think he is just reviewing it
7 MR. RUSSO: That's correct, Mr. President, we received it earlier
8 today. It should be no problem within a few days to advise the Chamber.
9 JUDGE ORIE: But there was agreement on the updated maps. It was
10 just a matter of uploading, or was it ...
11 MR. KEHOE: It's a matter of giving Mr. Russo the opportunity to
12 just review it consistent with the other maps. And I have to take
13 responsibility that we didn't give it to him sooner. So that's not his
14 fault; it's ours.
15 JUDGE ORIE: Yes, then it remains on our MFI list for the time
17 Could we hear from you with the same expediency as you heard from
18 Mr. Kehoe.
19 MR. RUSSO: Yes, Your Honour.
20 JUDGE ORIE: Then we will not deal with D1465 for the time being,
21 because the Chamber is waiting, whether any other portions of the Mladic
22 diary will be used when other witnesses will be examined, and, therefore,
23 I think that would be the selection criteria. Unless you would say we've
24 done with all of it, Mr. Misetic.
25 MR. MISETIC: Mr. President, there are portions of it that I had
1 on the list for General Mrksic. Because of the amount of time I had
2 spent, I didn't put to him what some of Mr. Mladic's comments about
3 General Mrksic, nor did I think that there was any anything particular
4 useful in asking him to comment on it. But I would ask that those
5 portions also, and they are from the days of Operation Storm through the
6 end of August, be included as well.
7 JUDGE ORIE: So that adds to the portions we have looked at up --
8 until now.
9 MR. MISETIC: Yes.
10 JUDGE ORIE: And have you identified those portions so that the
11 Prosecution is aware which portions they are?
12 MR. MISETIC: I have not. I will do that, Mr. President. I also
13 -- comes to mind I did use certain portions of that book. We started
14 with Mr. Lazovic, and did I put meetings in Belgrade with General Mrksic.
15 So it would be the portions I showed Mr. Lazarevic, the portions that
16 were put to General Mrksic at the end of June and early July, and then
17 the Operation Storm period.
18 JUDGE ORIE: And you do not expects any further use of this diary
19 for the witnesses to appear in late August and early September?
20 MR. MISETIC: That is correct, Mr. President.
21 JUDGE ORIE: Then you're invited to finally consolidate the list
22 of portions which are tendered into evidence. We will then hear from the
23 Prosecution whether there are any objections, and the Chamber can decide.
24 I skip a few other -- no, let me go by them. D1508, we'll not
25 deal with it at this moment. Same is true for D1531. Then on our list,
1 D1540 through D1546 were dealt with in the decision I read out today.
2 The same is true for D1551, D1552, and D1567.
3 We will not deal with D1569.
4 D1607, the 92 ter statement of Sterc we have dealt with earlier.
5 Then I move to P462. By mistake, in an earlier stage, this
6 received an exhibit number, but it was then set back again to being
8 August, as the dates of the meetings the transcripts are about. Finally,
9 the Prosecution took the position that they wanted to tender into
10 evidence the 9th of August transcripts as P461, and, finally, there were
11 translation issues in relation to that.
12 What the Chamber would like to know is whether the 9th of
13 August transcripts have been uploaded in B/C/S and whether there are any
14 remaining translation issues.
15 MR. HEDARALY: No, Mr. President. We have -- we have sent them
16 over to the Defence several weeks ago now. They had agreed the proper
17 version is uploaded, and the translations as well were uploaded for P462.
18 So it is ready to be admitted into evidence.
19 MR. MISETIC: Mr. President, if I may, I'm confused now. Are you
20 speaking of P461 and 9 August, or P462 and 11 August?
21 JUDGE ORIE: I think I'm talking about P462; nevertheless, in
22 relation to 9 August, because I think that portions of the 9th of
23 August were -- were mixed up with the -- there was some confusion about
24 the 9th and the 11th. If -- Mr. Hedaraly --
25 MR. HEDARALY: There was initially two transcripts that were
1 portions quoted in the same exhibits.
2 JUDGE ORIE: On [Overlapping speakers] ...
3 MR. HEDARALY: About two separate dates.
4 JUDGE ORIE: Yes.
5 MR. HEDARALY: The one that we have tendered that we have sorted
6 out and discussed with the Defence was the 11 August, those are the
7 transcripts at P462, that is what has been uploaded, that is what has
8 been shown to Ms. Skare Ozbolt, I belive, when she testified as well, as
9 she was present at that meeting. So initially both the 9 August and
10 11 August portions of both those meetings were in P462. We have removed
11 the 9 August portions from P462, and P462 now contains the portions that
12 we tender of the 11 August 1995
13 portions of them, and those had been agreed with the Defence. And I'm
14 glad that Mr. Misetic caught the date, the discrepancy, but we are in
15 agreement that the 11th August meeting, portions of them should be P462.
16 JUDGE ORIE: Yes. I don't just do these things on the top of my
17 head. There is some contradiction with what I have in front of me.
18 We'll verify that. We'll check that in the transcript pages. It may
19 well be a mistake within the Chamber's support team or by the Chambers.
20 We'll verify it.
21 P462 remains MFI
22 Anything to be added Mr. Misetic or ...
23 MR. MISETIC: I'm advised of another issue, but I don't have time
24 at the moment, Mr. President, if there's a problem --
25 JUDGE ORIE: Is that also in relation to P461 and 462?
1 MR. MISETIC: 462, I'm told.
2 JUDGE ORIE: 462. Then the parties are invited in informal
3 communication with the Chamber staff to point at any issues around that
4 so that we can resolve them. But let's leave them untouched at this very
6 Next one is P2547. We have dealt with that one already.
7 Same is true for 2548, 2549, 2551.
8 Next one on my list is P2569, a report of Amnesty International.
9 A selection would be made of what would be tendered into evidence, and
10 there were some problems because the B/C/S translation was not yet
11 complete of the relevant pages.
12 Has that been uploaded by now?
13 MR. HEDARALY: Yes, Mr. President.
14 JUDGE ORIE: Then there were no objections by the Cermak Defence.
15 Do the Gotovina Defence or the Markac Defence have any objections against
16 these selected portions of this Amnesty International report?
17 MR. MISETIC: No, Mr. President.
18 JUDGE ORIE: Mr. Mikulicic, I see you're also nodding no.
19 P2569 is admitted into evidence.
20 Then next on my list is P2585. That is the -- an analysis of
21 conduct on Operation Storm. The issue was that it was introduced without
22 -- it was shown to the Defence before, and no questions were asked about
23 it to the witness.
24 MR. KEHOE: Mr. President, if I could just short circuit this. I
25 believe this is the document, and Mr. Russo help me out, I think counsel
1 attempted to bar table it at that point. I just asked for a period of
2 time to review it, and I do believe I sent an e-mail to Mr. Russo saying
3 I had no objection to the admissions.
4 Ed, is this the exhibit?
5 MR. RUSSO: I think that's correct, yeah.
6 MR. KEHOE: So we had no objection, and I think Mr. Russo advised
7 Chambers that we had no objection.
8 THE INTERPRETER: The interpreters kindly ask the speakers to
9 slow down.
10 JUDGE ORIE: We were advised that there were no objections which
11 means that P2585 is ready to be admitted and is admitted into evidence.
12 Then the last one on my list is -- are related to Stjepan Sterc.
13 We'll deal with that at a later stage.
14 Also -- let me see. Yes, we'll not deal with them at this very
16 This concludes then we have at least been able to shorten the MFI
17 list considerably.
18 Any other matter to be raised at this moment?
19 MR. KAY: There's one matter concerning the Rule 68 motion filed
20 by the Cermak Defence, I think at the end of May, Your Honour. This also
21 has an impact on the scheduling for the case, because of the work
22 required on our part to analyse and present materials to enable the
23 issues in the case that we seek to rely upon to be put before the
24 Trial Chamber using Rule 92 bis. We have been able to conduct some of
25 these analyses already from materials we've had access to and that are
1 publicly available. Those relevant witnesses form a considerable part of
2 our Rule 65 ter (G) filing as to our witnesses, but that is in terms of
3 quantum rather than court time, as the Court appreciates the use of the
4 92 bis system for corroborative evidence and the related provisions.
5 I'm conscious that I have a case that will be, say, two months,
6 eight weeks, seven weeks, eight weeks, and when I come to close the
7 Cermak Defence case, it has been my intention to use the last day as the
8 92 bis day when all the relevant procedural requirements are performed in
9 court, so that we have our live evidence first, and then the structure,
10 as I see it, is best served by having the 92 bis evidence right at the
11 end. And I'm doing it for that reason because I'm conscious that there
12 may be further disclosure to us, as there has been thus far. And such
13 projects, I know, take a considerable amount of resources and time, and
14 I've had to make financial provision to ensure that and hire a new member
15 of staff to take that particular task on from within -- to assist my
17 I don't want to be in the position, when concluded my case, of
18 saying to the Court, I'm sorry, we just have not had time to review this
19 material and make an appropriate filing. I think that that would be
20 unsatisfactory, probably.
21 So I -- I do flag this up before the Court, as something that
22 members of my team who are dealing with this, have constantly raised with
23 me, and I'm a little bit concerned now as we're getting ever closer to
24 the start of our Defence case, and I want to make sure that we have
25 everything in proper place for our window of opportunity to present our
2 JUDGE ORIE: Yes. This is therefore mainly to inform the Chamber
3 about what you're doing at this moment rather than to require the Chamber
4 to take any action at this moment.
5 MR. KAY: We're looking to the Chamber for a decision.
6 JUDGE ORIE: Yes.
7 MR. KAY: And in a, I hope, gentle way.
8 JUDGE ORIE: You would appreciate if you didn't have to wait too
9 long. Isn't that --
10 MR. KAY: Of course, Your Honour, yes, and Your Honours'
12 JUDGE ORIE: Any other matter?
13 There being nothing on the agenda anymore, we will adjourn, but I
14 would first wish to everyone in this courtroom that they will have -- and
15 I know how difficult it is sometimes to relax during this holiday time.
16 I'm also aware that those who are in detention, even if not here, of
17 course, it is different for them, especially those who have to stay here.
18 Nevertheless, I wish everyone a good four weeks to come, three weeks of
19 recess and one week of not sitting.
20 And we resume on Monday, the 24th of August, 9.00 in the morning,
21 Courtroom III
22 --- Whereupon the hearing adjourned at 1.48 p.m.
23 to be reconvened on Monday, the 24th day of August,
24 2009, at 9.00 a.m.