1 Wednesday, 20 January 2010
2 [Open session]
3 [The accused entered court]
4 [The accused Markac not present]
5 --- Upon commencing at 9.15 a.m.
6 JUDGE ORIE: Good morning to everyone in and around the
8 Mr. Registrar, would you please call the case.
9 THE REGISTRAR: Good morning, Your Honours. Good morning to
10 everyone in and around the courtroom. This is case number IT-06-90-T,
11 the Prosecutor versus Gotovina et al. Thank you.
12 JUDGE ORIE: Thank you, Mr. Registrar.
13 I established that Mr. Markac has not appeared in the courtroom
14 this morning, which has happened before at housekeeping sessions.
15 Before we start with that housekeeping session, Mr. Registrar,
16 would you please -- let's go into private session.
17 [Private session]
11 Pages 26997-26998 redacted. Private session.
10 [Open session]
11 THE REGISTRAR: We're back in open session, Your Honours.
12 JUDGE ORIE: Thank you, Mr. Registrar.
13 We went into private session at a moment where we had established
14 that Mr. Markac is not present in court today, where a housekeeping
15 session is held. The Markac Defence explained the reasons why Mr. Markac
16 is not present in court and has requested that we would continue with the
17 housekeeping session, which we'll now do.
18 The housekeeping sessions, apart from a lot of other items on the
19 agenda will also include, but we're not going to start with that, to
20 reduce the size of our MFI
21 We start with the Markac submission of an expert report. The
22 expert report was filed on the 9th of October, expert report of
23 Nikica Baric. OTP has objected on the 9th of November. There were no
24 objections from the Gotovina Defence. There were no -- I think there
25 were no other filings. The matter is that Mr. Baric was not called as an
1 expert, which, for admission of his expert report, would have been
2 required under Rule 94 bis, where the opposing party has not accepted the
3 report and has expressed a wish to cross-examine Mr. Baric but he was
4 never called.
5 Under those circumstances, should we declare the submission of
6 the Baric report moot, or is it withdrawn? What would be --
7 MR. MIKULICIC: The submission was withdrawn, Your Honour.
8 JUDGE ORIE: The submission was withdrawn. Then I may have
9 missed that. When was that --
10 MR. MIKULICIC: As we informed the OTP but I'm not sure --
11 JUDGE ORIE: Well, usually the Chamber would like to know whether
12 a matter on which it is supposed to decide whether it is withdrawn or
13 not. But now you formally withdraw --
14 MR. MIKULICIC: Yes, Your Honour, correct.
15 JUDGE ORIE: -- the submission of the expert report of
16 Nikica Baric, pursuant to Rule 94 bis as it was filed on the
17 9th of October, 2009.
18 MR. MIKULICIC: Yes, Your Honour, that's correct.
19 JUDGE ORIE: That's now on the record.
20 The second item on my agenda is Cermak's motion for admissions of
21 documents into evidence, the Bijeljina murders. They have been submitted
22 from the bar table. I would like to know whether there is any objection
23 against having them admitted but I'm -- I saw that the comments of the
24 Office of the Prosecution are included in the established bar table
1 MR. HEDARALY: I think that's correct, Mr. President. And, in
2 any event, just to make it clear, we do not have any objections to these
4 JUDGE ORIE: No objections from any of the other parties.
5 Then the documents were filed -- the motion was filed on the
6 8th of December of this year [sic]. I have no further -- numbers have
7 not been assigned yet.
8 MR. HEDARALY: I believe that's correct, Mr. President.
9 JUDGE ORIE: Mr. Registrar, would you please assign numbers to
10 the documents which were filed. Once the numbers have been assigned, the
11 Chamber will decide to admit into evidence these Bijeljina documents.
12 MR. KAY: I'm much obliged, Your Honour.
13 JUDGE ORIE: I think the technical better way is to wait until
14 they have numbers but the decision is there and we will put, then, the
15 numbers on the record.
16 Mr. Registrar, is it clear which documents we are talking about
17 to you? They have been uploaded in e-court, and there was a bar table
18 submission filed on the 8th of December.
19 MR. KAY: It's in Annex A.
20 JUDGE ORIE: Annex A to that ... yes.
21 Then we move on to the next item on the agenda which is a matter
22 in relation to D420. D420 is already admitted into evidence, but we have
23 the following problem. It is the report on the implementation of the
24 plan of return and care of refugees and displaced persons. The problem
25 is that we have two originals. We have three versions of this document.
1 We have a B/C/S original, 3D00-1242; we have an English original,
2 3D06-0100, and the two are not exactly the same; and we have what is
3 called an additional translation, which is 3D06-0604.
4 It's clear that D420, which was admitted through Mr. Galbraith,
5 that what appears as an English version, or an English translation is not
6 the same document. Has this matter been further discussed between the
7 parties so that we know what the evidence is?
8 MR. HEDARALY: Mr. President, I don't believe the matter was
9 further discussed, but the issue, as Your Honour has expressed, is that
10 it is not an exact translation. So it's not like we have one document
11 that is the guiding document or the reference and then a document based
12 on that initial source. What we have is two independent documents,
13 although relating the same topic and saying roughly the same things, are
14 not identical.
15 What we would submit is that because the versions are not
16 identical, and we had to obviously look at the English version, that the
17 English document be considered the main exhibit in fairness to us, since
18 that is the one that we reviewed. We did not make an exhaustive
19 line-by-line comparison of the two documents because it is -- they are
20 quite long documents, and it's not clear if there were any substantial
21 differences. But to the extent that in preparation for examination and
22 cross-examination of witnesses we rely on the English version, we would
23 ask that that one be the one that is -- the one that is admitted into
25 JUDGE ORIE: What, then, to do with the uploaded additional
1 translation, which is now part of D420 as well? Should we strike that or
2 could I hear from the other parties, what -- I mean, the Chamber, of
3 course, is not going to accept in any way that we have additional
4 translations where there's no original from where it was translated. If
5 the English version would do, if that would give the -- then, first of
6 all, we would have to check whether this has any impact on the testimony
7 given by Mr. Galbraith; I have not checked that yet. But, of course, if
8 we have to understand his testimony in relation to this document, then,
9 of course, it should be clear what the document is, unless the
10 differences between the two versions of the document are irrelevant for
11 the testimony.
12 Mr. Misetic.
13 MR. MISETIC: Mr. President, we haven't given this much thought
14 because we didn't know this was on the agenda for today. But the -- what
15 comes to my mind is that the document wasn't only put to Mr. Galbraith
16 but it was also put to Mr. Pejkovic who would have reviewed the document
17 in the Croatian version.
18 So it may be the best solution is simply to have both documents
19 become exhibits, the Croatian with the translation, which I presume is
20 the translation of the Croatian original, and then if the Prosecution
21 wishes to rely on the English, they can tender it as a separate exhibit.
22 JUDGE ORIE: What we have, as a matter of fact, we do not have a
23 full translation, I think.
24 Let's have D420.
25 MR. HEDARALY: No, we don't, Your Honour, because it was a 60 --
1 60-some odd page document which was why Your Honour had commented that it
2 may not be -- I think that's why the Defence, when they tendered it,
3 because they had an English version just tendered both of them, although
4 it wasn't a formal translation.
5 JUDGE ORIE: Yes. Apparently the additional English translation,
6 I do not know exactly what it translates. It's 18 pages and -- is there
7 any way that the parties could just sit together and see what should
8 be -- and otherwise we would need either partial translation or a full
9 translation of the B/C/S document to the extent that it does not -- it is
10 not the same as the English version of the document.
11 MR. KEHOE: Yes, Mr. President, I think that we can do that. In
12 deference to Mr. Hedaraly's point, I mean, it could have been that a
13 certain section was used in cross-examination of Ambassador Galbraith,
14 and certainly I understand why counsel would want that in, and yet a
15 revised version was used with somebody else.
16 So I think we just need to go back to the transcripts and take a
17 look at how it was used, and I think we can come to a consensus on this.
18 JUDGE ORIE: Yes. It appears that there's great willingness to
19 resolve the matter and not to make it a subject of eternal dispute.
20 The Chamber will wait and see.
21 [Trial Chamber and Legal Officer confer]
22 JUDGE ORIE: The next point on my agenda, and we referred to it
23 briefly -- no, I -- the next point on my agenda is the MFI list.
24 The MFI
1 The first one is D215, which is a document which was admitted
2 into evidence. The problem was that it was not fully translated. The --
3 D215 was used with witnesses, I think, Galbraith and Gojanovic, if I'm
4 not mistaken.
5 MR. KEHOE: Excuse me, Mr. President.
6 JUDGE ORIE: Yes.
7 MR. KEHOE: I apologise. Just to interrupt, we received an MFI
8 list. That document is not on the list that -- it is on the list?
9 MR. HEDARALY: We have the same issue.
10 MR. KEHOE: I don't if we're dealing with two different lists.
11 MR. HEDARALY: D1719 is the first one that we received in the
12 documents --
13 JUDGE ORIE: D17 --
14 MR. HEDARALY: -- marked for identification. I think there may
15 have been other issues but they were not documents marked for
16 identification. So those are the ones that we were preparing for, based
17 on the list that we received.
18 [Trial Chamber and Registrar confer]
19 JUDGE ORIE: I take it that the problem is that I have an MFI
20 list on which appear also documents which are not MFIs anymore but where
21 there's still an outstanding matter.
22 I'll move through them. I'll point out what the remaining
23 problem is, although it has already been admitted. I apologise for the
24 confusion created by this.
25 D215, there was an issue of complete or incomplete translation
1 and admission in its totality. That was the problem which was raised
2 earlier, and the Chamber would like to hear the parties' position on the
3 incomplete translation and the fairness of what should be admitted into
4 evidence, what should not have been admitted into evidence.
5 I'll leave it to that for the time being.
6 The next one is also one which was admitted into evidence. That
7 is the ICRC booklet, which was not fully translated. Only one page is
8 there in English. I went through the booklet again yesterday and saw
9 that many, many pages are nice drawings of all kind of situations.
10 Sometimes little text. However, there seems to be text dealing with
11 international humanitarian law as well, which might be worthwhile to have
12 translated. But one of the issues raised by the Chamber is whether there
13 was an English version of this same booklet and whether the parties would
14 try to find an English version, because the ICRC, of course, is not
15 exclusively an organisation working in the former Yugoslavia.
16 MR. MISETIC: Yes, we will certainly look for it, Mr. President,
17 but if we could ask for an exhibit number so that we can follow with you.
18 JUDGE ORIE: Yes, I --
19 MR. HEDARALY: D533, I think, is that the one?
20 JUDGE ORIE: D533, yes.
21 And what the Chamber would prefer is that the parties would agree
22 on what portions would be in need of being translated, if no translation
23 yet exists of the text written in that booklet. And I think all the
24 instructions on what to do with someone who is wounded in manner A, or
25 manner B, that speaks for itself, more or less, that these are
1 instructions for care to be given to wounded people, and I don't think
2 that that's -- that we need full translations of that.
3 So could the parties please sit together and see what portions of
4 D533 need to be translated.
5 Then ... I have one more, which also seems to be a document which
6 was already -- could -- there must a little problem with the French
7 booth. I love to hear French, but ...
8 Which in relation to D1791, again, it does not appear on your
9 list, to 1794, that is intelligence findings review for certain periods.
10 And the Chamber has asked the Markac Defence why portions were redacted.
11 You indicated, Mr. Mikulicic, that you would verify and later
12 that you were working on it. Still the matter has not been fully
13 resolved as to why certain portions are missing. I earlier indicated
14 that if the document is not complete that the Chamber might find itself
15 in a situation where it has to reconsider the admission.
16 MR. MIKULICIC: Your Honour, we asked for some explanation
17 according to your guidance but we didn't receive any answer until today.
18 So we will simply try to do it again.
19 JUDGE ORIE: Yes. When was the last time that you --
20 MR. MIKULICIC: Immediately after the court session where this
21 documents has been introduced. And I -- I cannot remember. I think it
22 was in the mid of November, or in the beginning of the November.
23 JUDGE ORIE: Yes. And have you, at a later moment, urged for a
24 quick response?
25 MR. MIKULICIC: No, we didn't. But we will do it immediately,
1 Your Honour.
2 JUDGE ORIE: Yes. It is evidence that was introduced by you, and
3 since we are coming closer and closer to the end of the case,
4 Mr. Mikulicic, it really is an urgent matter, and the Chamber would like
5 to receive at least some provisional indication of what we could expect,
6 well, let's say, within the next -- until Monday noon, try to -- perhaps
7 to make telephone contact or ...
8 MR. MIKULICIC: Yes, we will do our best, Your Honour.
9 JUDGE ORIE: Yes.
10 Then we're back on your list. D1719, which is portions of the
11 Jarnjak interview. It was tendered. Then the Prosecution indicated what
12 it needed as context for the tendered parts. And then, on the
13 16th of November, the tendering was withdrawn.
14 The Chamber -- it was all about the way in which interviews took
15 place. It was meant to be an illustration of what happened and not that
16 much the content of the Jarnjak interview itself but --
17 The Chamber is -- was considering but we'll give you the decision
18 on whether the Chamber would like to have this -- these portions of the
19 interview in evidence, although it was not tendered anymore by the
20 Gotovina Defence. The Chamber will inform you about it, if possible
22 Then I move on to D1877, up to and including D1882, which are
23 Cermak Defence bar table submissions. It is related to the
24 cross-examination of Mr. Moric. The bar table submission was filed on
25 the 18th of December in the required format.
1 There seem to be no objections. Is it entirely clear from the
2 format whose comments are in this comments table? May I take it --
3 MR. KAY: They're agreed comments, Your Honour --
4 JUDGE ORIE: They're agreed comments.
5 MR. KAY: -- and they have been circulated.
6 JUDGE ORIE: They have been circulated. No, it is just that
7 these are agreed comments, because often we find OTP comments on it, but
8 these are agreed comments.
9 In the absence of any objection then, D1877, up to and including
10 D1882, are admitted into evidence.
11 I move on to -- the Gotovina bar table submissions, D1883, up to
12 and including D1892.
13 The Chamber was informed on the 7th of December that an agreement
14 had been reached between the Gotovina Defence and the Prosecution; more
15 specifically, Ms. Mahindaratne.
16 On the 9th of December, the bar table submission was MFI'd in
17 court. If there are no objections, and it appears that there are none,
18 the Chamber will decide on -- no, let me just ...
19 I think the bar table was -- the submissions -- is this part of
20 the omnibus bar table --
21 MR. KEHOE: No, Mr. President, it was not. It was separate and
22 apart of that --
23 JUDGE ORIE: Let me just have a look. Could you tell us exactly
24 when it was filed --
25 MR. KEHOE: Yesterday, Mr. President.
1 JUDGE ORIE: Yesterday. That may cause some of my confusion.
2 Although I think I have seen ...
3 [Trial Chamber and Legal Officer confer]
4 [Trial Chamber and Registrar confer]
5 MR. HEDARALY: Your Honour, if it assists, it was circulated at
6 5.03 p.m.
7 JUDGE ORIE: Yes. I have now the filing before me.
8 What we see is that D1883, up to and including D1892, which are
9 mostly reports on on-site MUP investigations of the second half of
10 August 1995, and one cover letter with correspondence in which Mr. Kardum
11 passes instructions from the Moric to the police administration to do
12 on-site investigations. All to do with on-site investigations. They
13 have now been presented -- they have all been presented now in the format
14 which the Chamber requires. There seems to be no further comments from
15 the Prosecution.
16 Is there any comments from any of the other parties?
17 No objections. Therefore, D1883, up to and including D1892, are
18 admitted into evidence.
19 Yes, it was included in an e-mail which I was supposed to have
20 read this morning. The matter has been resolved.
21 We move on to the -- we move on to the next one, which is P2640,
22 minutes of a presidential meeting, 11th of April, 1995.
23 Apparently there was some translations issues there. They appear
24 to have been resolved.
25 MR. HEDARALY: Both -- there was both a translation issue and a
1 contextual issue. They both have been resolved and agreed with my
2 learned colleague, Mr. Cayley. So it is ready to be admitted.
3 JUDGE ORIE: And the correct versions have been uploaded
4 meanwhile, from what I understand.
5 MR. HEDARALY: Yes.
6 JUDGE ORIE: Yes, and that was -- the Chamber was informed about
7 this on the 18th of November. And, therefore, nothing opposes admission
8 into evidence anymore of this document.
9 P2640 is admitted into evidence.
10 The next one is P2643, which is among -- if I could call them the
11 Skegro documents. Because Mr. Skegro sent us some other documents as
12 well, which were related to this document --
13 MR. HEDARALY: Actually, Mr. President, I think -- I think there
14 were two separate issues. The documents that Mr. Skegro sent were with
15 respect to a separate allegation that were made by some media reporters.
16 This one was an article in the Independent, and -- who referenced --
17 which referenced a Presidential transcript which the Prosecution did not
18 have. Based on Your Honours' guidance we have now asked for that
19 Presidential transcript, we have received it, to provide further context.
20 It is in translation now. We were informed we should have it by the --
21 hopefully the end of the day. So as soon as we have it, we will
22 circulate that and then that exhibit can be considered with its
23 contextual -- with the source of the article and then be moved in
25 And then the other issue are the issues --
1 JUDGE ORIE: Yes, are the six documents sent by Mr. Skegro.
2 MR. HEDARALY: That's correct.
3 JUDGE ORIE: Has the original already been disclosed to the -- to
4 the Defence?
5 MR. KAY: No, Your Honour.
6 JUDGE ORIE: When did you receive it, Mr. Hedaraly?
7 MR. HEDARALY: I forget, Your Honour. There was back and forth
8 because we -- initially we didn't get it from the Croatian government.
9 We had to go back to them. We are waiting for it to be translated. We
10 received it not too long ago but we can send the B/C/S version right
11 away, or as I said, we should have the translation by the end of the day.
12 JUDGE ORIE: Yes. Sometimes it allows already a party to look at
13 the document, if they received the original even if it's not yet
14 translated, because parties may have their own means of obtaining access
15 to the content of a document.
16 So, therefore, Mr. Hedaraly, it certainly would have been better
17 to have it disclosed immediately.
18 Any further comments on the matter?
19 MR. KAY: No. We have the other Skegro documents, as Your Honour
20 knows, to be dealt with.
21 JUDGE ORIE: Yes. That's the judgements and the -- yes. But as
22 far as this matter is concerned, would we wait and see when the
23 translation is there, and would we then -- I take it that you,
24 Mr. Hedaraly, you want, then, to tender the transcript as directly
25 related to and either corroborating, or not corroborating, the press
2 MR. HEDARALY: That's correct.
3 JUDGE ORIE: So that we have a more -- that we have the better
4 evidence on the matter, and that before the Chamber decides on the
5 matter, that we'll hear from the Cermak Defence whether there are any
6 objections against either the transcript itself or selection translated.
7 And you already provide the original without further delay to the
9 Mr. Kay, we'll then hear at a later stage knowing what the
10 Prosecution intends to do with this transcript.
11 MR. KAY: Yes. And what we intend to do when we get the
12 materials ourselves.
13 JUDGE ORIE: Yes, yes.
14 Now, about the other Skegro documents, I do understand that you
15 have submitted them for translation. I think there were four judgements
16 and there were some -- two more documents.
17 Have you received translation, and have you made up your mind as
18 to what to do with them, if anything.
19 MR. KAY: Yes. It's all been distributed. Those documents we
20 now ask to be given exhibit numbers. The Court has been provided with
21 the information. They are the 65 ter numbers 2D00811 --
22 JUDGE ORIE: Yes, and then up to and including --
23 MR. KAY: -- to 14.
24 JUDGE ORIE: -- 814, yes.
25 MR. KAY: They've all been disclosed. They went to an issue of
1 his credibility. The documents have been translated, and we ask that
2 they be assigned exhibit numbers and admitted into evidence.
3 JUDGE ORIE: Yes. I find this, including the 65 ter numbers, in
4 your -- in your yesterday's e-mail of 5.30 p.m., where --
5 MR. KAY: Yes.
6 JUDGE ORIE: And I see that there are the -- these are P1, P2,
7 T1, R1, as you call them.
8 MR. KAY: We also link them to the transcript for the Court for
9 ease of reference.
10 JUDGE ORIE: Yes, I have seen that all the transcript pages are
11 included in your yesterday e-mail. I think the e-mail in itself,
12 although of assistance to the Court, doesn't add anything so it doesn't
13 have to get any official status. It's just for us, for our information.
14 Then could I hear from the other parties, whether there's any
15 objections against the four documents just mentioned; that is
16 65 ter 2D00811, up to and including 65 ter 2D00814.
17 MR. HEDARALY: We don't have any objections.
18 JUDGE ORIE: No objections. I hear of no objections from the
19 other Defence teams.
20 Mr. Registrar, 65 ter 2D00811 would receive ...
21 THE REGISTRAR: Would receive Exhibit D1954. Thank you.
22 JUDGE ORIE: D1954.
23 The next one, last three digits 812.
24 THE REGISTRAR: Will receive Exhibit D1955.
25 JUDGE ORIE: Next one, last three digits 813.
1 THE REGISTRAR: Will receive Exhibit D1956. Thank you.
2 JUDGE ORIE: And, finally, the last one, last three digits 814.
3 THE REGISTRAR: Will receive Exhibit D1957. Thank you.
4 JUDGE ORIE: D1954, up to and including D1957, are admitted into
6 The next one on my list is P2644. A decision on admission was
7 already taken, but the -- we are waiting for a new translation. We were
8 informed on the 14th of December by the OTP that a revised translation
9 was uploaded.
10 MR. HEDARALY: That's correct. And it was circulated. And it
11 was -- there were no further -- there was no further concerns by the
12 Defence with respect to the revised translation.
13 JUDGE ORIE: Yes. Which means that P2644, which was already
14 admitted into evidence, now is accompanied by a revised translation in
16 Mr. Misetic.
17 MR. MISETIC: Mr. President, I'm just noting that in e-court
18 itself the revised translation has not been uploaded, so ...
19 JUDGE ORIE: Oh, I must say that on the 14th of December, it said
20 that a revised translation was to be uploaded and -- well, since then it
21 is more than a month, so ...
22 MR. HEDARALY: Well, I think, Your Honour, that the new procedure
23 is that Mr. Registrar waits to get the approval of the Chamber before
24 himself uploading it. That's why it's ready. It's agreed upon. It's
25 just a matter of formally uploading it.
1 JUDGE ORIE: Yes, so then I have to address Mr. Registrar.
2 Mr. Registrar, have you -- do you have the revised translation
3 in -- available for uploading it and attaching it to the original of
5 THE REGISTRAR: Yes, Your Honours, I do. All I need is your
6 instruction to do so. Thank you.
7 JUDGE ORIE: You have received my instruction about this.
8 Yes, now I remember that the parties are not allowed just to
9 attach new translations without a proper decision, especially if a
10 document is already -- is already admitted.
11 MR. HEDARALY: I don't think it was admitted; I think it was
13 and the status showed up as MFI
14 formally, I would be grateful.
15 JUDGE ORIE: Yes, you're right. You're right. I made a mistake.
16 Therefore, P2644 with the newly uploaded translation into English with
17 the approval of the Court is now admitted into evidence.
18 I am now at P2662; extracts from a book by Mate Granic.
19 Prosecution has tendered 14 pages. The pending issue was that
20 the other parties would still be in a position to tender additional
21 relevant portions of the book.
22 Is there any wish to do so?
23 If not, then nothing opposes the admission of P2662, as tendered
24 by the Prosecution, a selection of 14 pages, English version of the book,
25 and, therefore, P2662 is admitted into evidence.
1 P2678, there was a translation issue. The Chamber received, on
2 the 14th of December, a message that the translation issue had been
3 resolved, that the translation was verified, and that the Gotovina
4 Defence finally agreed with the translation as it was then uploaded.
5 Therefore, it seems that nothing opposes admission into evidence anymore.
6 The verification has not resulted in any changes for which I
7 would have to give approval then.
8 MR. HEDARALY: All I know is that there was a revised
9 translation. I don't know if there were any -- I haven't looked into
10 whether any specific changes were made.
11 JUDGE ORIE: But it's important to know whether the translation
12 which we have in e-court now is the verified and agreed upon translation
13 as we're talking about.
14 Is this -- could this be verified at this very moment?
15 MR. HEDARALY: We will check, Your Honour, and we will get back
16 to the Court shortly.
17 JUDGE ORIE: Which means that it is not yet admitted into
18 evidence but we will soon hear and finally decide the matter.
19 Then ... there was an issue in relation to P2604. P2604 was
20 admitted into evidence, and two pages, apparently, were missing, and the
21 OTP has requested these pages to be added.
22 From what I do understand, Ms. Gustafson, you suggested that --
23 or you initially wanted to add 65 ter 7524 to P2604 but there were some
24 formatting problems. There were also illegibility problems in relation
25 to those documents. At the same time, the Gotovina Defence did not
1 oppose against at least having 65 ter 7524 into evidence, whereas the
2 other Defence teams remained silent on the matter.
3 Are we yet at a point that perhaps 65 ter 7524 could be assigned
4 a separate exhibit number, although it is related to P2604.
5 Ms. Gustafson.
6 MS. GUSTAFSON: Yes, Your Honour. That's -- in light of the
7 different formats and different nature of the translations of the two
8 documents, perhaps it's best that it actually be assigned a separate
10 JUDGE ORIE: Yes. Now, in order to establish the relation
11 between P2604 and this not yet known new exhibit, for purposes of
12 accessibility and ease, the Chamber suggests that we would state on the
13 record that this new exhibit was introduced through the witness,
14 Mr. Bajic, although it formally was not but that creates the link to the
15 testimony of Mr. Bajic and creates also the link to P2604.
16 MS. GUSTAFSON: Certainly, Your Honour, that seems to be a
17 sensible solution.
18 [Prosecution counsel confer]
19 MR. MISETIC: Mr. President, while the Prosecution is consulting,
20 I just wanted to alert the Chamber that the translation in P2678 has not
21 been uploaded into e-court as yet, and so, therefore, I believe the
22 Chamber needs to approve the Registrar changing the translation.
23 MR. HEDARALY: That's correct. It was like the previous exhibit,
24 so Mr. Registrar would need approval to upload the revised translation.
25 JUDGE ORIE: Yes. Then, since the translation has been verified
1 and agreed, Mr. Registrar, you have the Chamber's approval to upload the
2 translation of P2678.
3 Apparently, then, there are changes, I take it?
4 Mr. Registrar, if you have executed this instruction, P2678, with
5 the translation as is now uploaded, is admitted into evidence.
6 MR. HEDARALY: I'm sorry, Your Honour, I don't think that an
7 exhibit number was given for 65 ter 7524. I think we got sidetracked.
8 JUDGE ORIE: Yes, Mr. Misetic used the time when we are still
9 waiting for other matters.
10 Next step, Mr. Registrar, 65 ter 7524 would receive number ...
11 THE REGISTRAR: It will receive Exhibit P2706. Thank you.
12 JUDGE ORIE: P2706 is admitted into evidence, and is considered
13 as being introduced through Mr. Bajic.
14 There still is an issue in relation to P2526 but I will deal with
15 that at a later stage.
16 I move to another document which is already admitted as P2382.
17 The English translation does not match with the -- as far as I
18 understand, by mistake, uploaded B/C/S original. The B/C/S version,
19 therefore, needs to be replaced with the correct file.
20 Mr. Registrar, have you been informed about what the correct file
21 is, and is it ready to be uploaded once you have received approval from
22 the Chamber?
23 THE REGISTRAR: Yes, Your Honours. I have all the files
24 necessary. All I need is your instruction. Thank you.
25 JUDGE ORIE: Then P -- for P2382, the non-matching original is
1 now to be replaced by the correct B/C/S version.
2 Mr. Registrar, once this has been done, P2382 is no problem
4 We had a problem with P2383 as well, which also was already
5 admitted into evidence. Here, the English and the B/C/S copies do match
6 but the English version has an additional paragraph of text, where the
7 B/C/S has no such paragraph.
8 Since the B/C/S is the original tendered, the English version
9 needed to be replaced with the correct file.
10 Mr. Registrar, have you received, meanwhile, another English
11 translation which does match in every detail with the original?
12 THE REGISTRAR: Yes, Your Honours. I do have the necessary file.
13 All I need is the Trial Chamber's instruction. Thank you.
14 JUDGE ORIE: Then you are hereby instructed to replace the
15 English translation by the new revised version of this document.
16 Let me check in relation to a few translation issues.
17 P1519, there was initially no translation in e-court. The
18 translation has meanwhile been provided.
19 Mr. Registrar, did you receive a translation for P1519?
20 THE REGISTRAR: Yes, Your Honours, I do have the necessary file.
21 JUDGE ORIE: And then you are instructed to upload it in e-court
22 and make it part of the admitted exhibit, P15 ...
23 [Trial Chamber and Legal Officer confer]
24 JUDGE ORIE: The next one, P1688. In the original, photographs
25 were missing. The Chamber understands that these photographs have now
1 been received and ready to be uploaded once the Trial Chamber has given
2 such instructions.
3 Is that correct, Mr. Registrar?
4 THE REGISTRAR: Yes, it is, Your Honour.
5 JUDGE ORIE: I hear of no objections in adding these photographs.
6 Therefore, you are hereby instructed to upload the photographs in the
7 original version so that they become part of P1688.
8 The next one, being P2006, originally the translation was
9 missing. Translation has now been provided by the OTP.
10 Mr. Registrar, if this is to be confirmed, you're hereby
11 instructed to upload the translation so that it becomes part of P2006.
12 Could you confirm that you have received it?
13 THE REGISTRAR: Yes, Your Honour, hereby I confirm. Thank you.
14 JUDGE ORIE: Thank you. Then the next one is P2011.
15 Same problem. Could you confirm, Mr. Registrar, that we
16 meanwhile received a translation for P2011 and that it's ready for being
18 THE REGISTRAR: Yes, Your Honours, I can confirm. Thank you.
19 JUDGE ORIE: Then you're hereby instructed to upload the
20 translation so that it becomes part of P2011.
21 P1676. The translation was not complete and photographs were
22 missing in the original version.
23 Mr. Registrar, have you received revised versions of P1676 and
24 are they ready to be uploaded?
25 THE REGISTRAR: Yes, Your Honours, it is ready to be uploaded.
1 Thank you.
2 JUDGE ORIE: Then you're hereby instructed to do so, so that the
3 new uploaded versions are now P1676.
4 This, as far as we could go at this moment, concludes the MFI
5 list. It's not entirely empty yet but almost.
6 No further comments, then I'd like to first have a break.
7 MR. KAY: Your Honour --
8 JUDGE ORIE: Yes.
9 MR. KAY: -- there was another housekeeping matter that we had,
10 which --
11 JUDGE ORIE: There are far more housekeeping matters which I will
12 deal with after the break.
13 MR. KAY: Oh. Time goes quickly when you're enjoying yourself.
14 JUDGE ORIE: I'm happy to hear that, Mr. Kay.
15 I think you -- let me just check. In your e-mail of yesterday, I
16 think, D494 is still to be dealt with. I'll save that for after the
18 And we'll have a break and resume at 11.00.
19 --- Recess taken at 10.34 a.m.
20 --- On resuming at 12.01 p.m.
21 [Trial Chamber confers]
22 JUDGE ORIE: It took the Chamber considerably -- considerable
23 more time to further prepare for the remainder of this housekeeping
25 I come back on a few items which we discussed in relation to the
2 D1719, portion of the Jarnjak interview tendered, then withdrawn.
3 I indicated this morning that the Chamber would consider whether or not
4 it would be inclined to seek this portion of the interview to be in
5 evidence. The Chamber has decided that it will not further pursue this
6 matter, which means that D1719 is vacated.
7 P2526, at this moment, consists of various documents. It is the
8 interview with Mr. Cermak. The last document which was attached to
9 P2526, which adds to the contents of the original, should be given a
10 separate exhibit number. For very practical reasons, it doesn't change
11 anything as far as admission is concerned.
12 Mr. Registrar, are you aware of what I'm talking about; and, if
13 not, we'll have a look at P2526.
14 THE REGISTRAR: Yes, Your Honours. And if need be, I can assign
15 an exhibit number.
16 JUDGE ORIE: Yes, I first wanted to clearly identify which part
17 of P2526 it is. That is now given a separate --
18 MR. HEDARALY: It will be doc ID 0672-3372, Your Honour. And
19 could we suggest that -- I don't know if it is possible but if -- maybe
20 have an exhibit number that is associated to this one, maybe 2526A, so
21 that it can be referenced easier. But I don't know if that is possible
22 or not.
23 JUDGE ORIE: Mr. Registrar is already nodding no. Could you
24 please -- you were talking about 0672-3372 which now appears as number 2
25 under P2526, which starts with: "Interview with Ivan Cermak,
1 17th of March, 1998; time 11.47 a.m.
2 the transcript that have not been translated into English." That is the
3 document we're talking about, accurately identified as ID 0672-3372, and
4 that is now separated from P2526 and receives what number, Mr. Registrar.
5 THE REGISTRAR: Your Honours, this document shall be given
6 Exhibit P2707. Thank you.
7 JUDGE ORIE: And is admitted into evidence.
8 There was one other document on which the Chamber still had to
9 decide. That is exhibit -- I think it's D294. I'll just find it.
10 D294 is a video with a route from Sveti Rok to Gracac, initially
11 tendered through Witness Vanderostyne; later revisited again with
12 Witness MM-025. The Chamber, having heard the OTP objections,
13 nevertheless, decides that this video is admitted into evidence.
14 That, in relation to D294.
15 Then I would like to slowly move forward.
16 Number 5 on my exhibit list, Mr. Mikulicic, is summaries still
17 having not been read out. I just refer to it, 92 ter summaries. I'm not
18 going invite you to do it now. If we would have time later today, I may
19 invite you to do it. An option still to be considered is also that the
20 summaries, although not evidence, be filed so that the public is informed
21 about it. But we'll leave that for a later moment.
22 Then the next item on my agenda is P461, Brioni transcript. The
23 Brioni transcript has been the subject of quite some exchange of views on
24 the accuracy of the transcript, both text and identification of speakers.
25 The Chamber would like to issue a decision on this matter. But before we
1 do so, I would like to inquire into one specific element. On page 34 of
2 the Brioni transcript, and in the transcript reference is made to Arkan;
3 whereas, it is suggested strongly by the Gotovina Defence that it should
4 be understood as a reference to Orkans, which is a -- from what I
5 understand, a multiple rocket-launcher.
6 The Chamber is not aware that it has received a clear position on
7 that from the Prosecution. If would you like me to --
8 MR. MISETIC: Mr. President, is this page 34 in the original?
9 JUDGE ORIE: It's page 34 in the English. I'll read the --
10 MR. MISETIC: Just so, Mr. President --
11 JUDGE ORIE: Well, it is Mr. Gotovina which is reported to be
12 speaking; whereas the Gotovina Defence claims that it is Mr. Domazet --
13 MR. MISETIC: Yes, but --
14 JUDGE ORIE: -- speaking. Yes.
15 MR. MISETIC: Just so we know where we are, right now the English
16 translation in e-court only has 33 pages. So I'm not able to follow
18 JUDGE ORIE: I am, at this moment, dealing with a hard copy.
19 Yes, that may be a problem.
20 I'm looking at the bottom of that page and the last extension is
22 0132-4986-0132-40 -- 5049/AL. I do not know what that gives a clue to.
23 MR. MISETIC: That's what is in e-court. But the last page in
24 e-court, numbered page, then, in the middle is 33.
25 MR. HEDARALY: Is there a number on the top right corner, 03
1 something, that could --
2 JUDGE ORIE: Yes. I have an ERN number, 03049068.
3 MR. HEDARALY: That's page 26 in e-court. Thank you,
4 Mr. President.
5 JUDGE ORIE: What I will now do is I'll open it on my screen so
6 that I am certain I know what I'm talking about.
7 I want to be sure that I'm not reading from a wrong document.
8 [Trial Chamber and Registrar confer]
9 JUDGE ORIE: Mr. Misetic, I receive another printed copy of --
10 unless you can settle the matter right away.
11 MR. MISETIC: I hope to.
12 My Case Manager, Ms. Katalinic, tells me that you started by
13 referencing this on page 34. That is in page 34 of the corrected version
14 that the Gotovina Defence submitted but which is not admitted into
16 JUDGE ORIE: Yes, and now we are on page 25 of the original. And
17 I --
18 MR. MISETIC: 26.
19 JUDGE ORIE: 26 --
20 MR. MISETIC: I'm sorry, 25 of the original. I apologise. It's
21 26 of the --
22 JUDGE ORIE: 25 of the original, which -- yes.
23 MR. KEHOE: I think the difficulty may be, Mr. President, that
24 with our corrections, it never received a number.
25 JUDGE ORIE: Yes. Because we have to decide on whether -- let me
1 just see.
2 Yes, I'll read now from the bottom of page 25 of the -- of the
3 version which is in evidence and as we find it in e-court, where
4 Ante Gotovina is identified as the speaker, although this is challenged
5 by the Gotovina Defence, which claims that it should be Mr. Domazet. But
6 apart from who is speaking, the text reads:
7 "They can't. They have an organised position in Maja," with a
8 question mark, "and, of course, they can, together with Arkan, from that
9 area we know those positions so we shall try to neutralise them with our
11 Now the issue is whether it is Arkan or whether it's Orkans,
12 whether it's a reference to a person or whether it is a reference to some
13 weaponry. And I think it's a bit unclear whether we have received the
14 position of the Prosecution. I'm also thinking in terms of logic on what
15 would you expect in this context.
16 MR. HEDARALY: Your Honour, first of all, I had -- I would have
17 wished that we had known that this issue would be raised because this has
18 now been months, if not more than a year or so, all the details are not
19 fresh if my mind. However, in our submission of 15 April 2009, although
20 we did not go through all the specific changes, amendments or
21 corrections, however they are called, proposed by the Gotovina Defence,
22 we did agree that that quote should be attributed to Mr. Domazet. So
23 that is not an issue in dispute.
24 JUDGE ORIE: Yes.
25 MR. HEDARALY: With respect to the -- to the content, we did
1 raise this in our submission and we do have concerns with these changes
2 being made, and the reasons are explained how a lot of them are
3 testimonial in nature. We did not call the witnesses, as Your Honour
4 well knows, to see how tape was described.
5 JUDGE ORIE: The Chamber will deliver a decision on that. The
6 only issue is whether we would have to deal with Arkan or Orkans in that
7 decision as well. That's the only thing I'm exploring at this moment.
8 MR. HEDARALY: Looking at it right now, Your Honour, I cannot
9 take a position. We would want to listen to that audio portion again.
10 Even from the context, I'm not sure that it has to be Orkan, it could be
11 Arkan, and I'm not just willing at this point to take a position on it.
12 JUDGE ORIE: That's clear.
13 [Trial Chamber confers]
14 JUDGE ORIE: The Chamber will deliver a decision on this
15 transcript. However, in view of the confusion that came up in relation
16 to page numbers, et cetera, the Chamber would like to first verify, in a
17 short break later this morning, whether any reference to page numbers,
18 whether we would have similar mistakes. We just want to verify that
19 before I read that decision from the Chamber. But the Chamber has made
20 up its mind as to what is still to be done and what is not to be done
21 anymore, in relation to the Brioni transcript.
22 One second.
23 [Trial Chamber and Legal Officer confer]
24 JUDGE ORIE: Then we move on to the translation of D970; also in
25 relation to P1272, if I say "udar" or "udare," everyone will immediately
1 know what we are talking about.
2 The Chamber has considered what to do, under the present
3 circumstances, where a further explanation and verification has been
4 sought by CLSS, and where the Gotovina Defence has put on the record that
5 it was still not satisfied with this explanation and the translation.
6 The Chamber has considered that in full awareness of the
7 continuing dispute that the Chamber will evaluate this portion of the
8 evidence with great caution and in -- and as part of the entirety of the
9 evidence but will not take further action at this moment and leaves the
10 matter for the time being as it is.
11 But as I said before, the Chamber is aware of the dispute, the
12 not finally yet settled dispute on the translation.
13 Then I'd like to read out a decision, in relation to reasons for
14 granting protective measures to Witness MM-025.
15 On the 3rd of December, 2009, the Markac Defence requested the
16 Chamber to grant Witness MM-025 the protective measures of pseudonym as
17 well as voice and image distortion.
18 On the 4th of December, the Markac Defence filed a corrigendum,
19 requesting to have the testimony of the witness delivered in closed
21 On the 15th of December, 2009, the Prosecution objected to the
22 request. And this can be found on transcript page 26.274.
23 On the same day, the Chamber heard directly from Witness MM-025
24 about the reasons for the requested protective measures and subsequently
25 granted the request, with reasons to follow. This decision can be found
1 at transcript page 26.291 and the public is hereby informed of it.
2 The Chamber has previously held that a party seeking protective
3 measures for a witness must demonstrate an objectively grounded risk to
4 the security or welfare of the witness or the witness's family, should it
5 become known that the witness has given evidence before this Tribunal.
6 This standard can, for example, be satisfied by showing that a threat was
7 made against the witness or the witness's family. Even though the
8 granting of protective measures is, and should be, the exception to the
9 rule of a public trial, the threshold for when it should be granted
10 cannot be set too high. For example, to exclude persons who have not
11 experienced threats and harassment would defy the purpose of the
12 measures; namely, protection for risks that might occur as a result of
13 the testimony. The Chamber must therefore make a risk assessment, and
14 inherent in such an assessment is applying a certain level of caution and
15 erring on the safe side.
16 Witness MM-025 was intermittently a member of the SVK between
17 1991 and 1995, and was allegedly mistreated in the Republika Srpska. A
18 family member of the witness was killed under unknown circumstances. The
19 witness was expected to testify about an event which may identify him
20 with the community in which he currently lives and works.
21 After 1995, the witness returned to Croatia, where he lives with
22 his family, while part of his family lives in Serbia. Giving testimony
23 is not looked upon favourably by some people the witness encounters in
24 his work. In the context of his work, for which the witness travels
25 within the territory of the former Yugoslavia
1 called Ustasha. For the foregoing reasons, the witness feared that,
2 should it become known that he had testified, the security and welfare of
3 both his family and himself may be put at risk.
4 Having considered all of the above, the Chamber found that the
5 Markac Defence had demonstrated an objectively grounded risk that, should
6 it become known that Witness MM-025 has given evidence before this
7 Tribunal, it would place the security and welfare of the witness and his
8 family at risk. The Chamber furthermore considered that, in light of the
9 nature of the anticipated evidence of the witness, the only effective way
10 to protect his identity was to hear his testimony in closed session.
11 This concludes the Chamber's reasons for its decision to grant
12 protective measures to Witness MM-025.
13 I move on. The next item on my list is Markac's motion to amend
14 its 65 ter witness list.
15 It is a matter which is to some extent already in the past,
16 because the witness has testified already, Ms. Bagic.
17 Has the corrigendum been filed of the 65 ter list?
18 MR. KUZMANOVIC: No, Your Honour, but we will do that forthwith.
19 JUDGE ORIE: Yes. Leave is granted to add the Witness Bagic to
20 the 65 ter witness list, and the Markac Defence is invited to file the
22 I move to my next matter, but we'll move into private session for
24 [Private session]
11 Pages 27032-27041 redacted. Private session.
15 [Open session]
16 THE REGISTRAR: We're back in open session, Your Honours.
17 JUDGE ORIE: Yes.
18 [Trial Chamber and Legal Officer confer]
19 [Trial Chamber and Registrar confer]
20 JUDGE ORIE: What I still have on my agenda, and we have got
21 40 minutes at a maximum left, in view of the tapes, is submissions on the
22 interviews and the appropriateness of involvement of certain persons.
23 You asked for 15 minutes, Mr. Hedaraly.
24 Could I hear from the other parties how much time they would need
1 MR. KUZMANOVIC: Five minutes, Your Honour.
2 JUDGE ORIE: Five minutes.
3 MR. MISETIC: I believe the Prosecution goes first, so 15 minutes
4 or less, depending on their submissions.
5 JUDGE ORIE: There we are at 35. The Cermak Defence, no
6 submissions to make or ...
7 MR. KAY: Your Honour, we have no submissions on this issue.
8 MR. HEDARALY: Mr. President, I think we and the other parties as
9 well have a few outstanding matters. We can obviously do it at a later
10 stage as well. Some of this has been waiting for -- for some time. But
11 we leave it to the Chamber. But I just wanted to alert the Chamber that
12 there are, I think, outstanding items as well from all the parties.
13 JUDGE ORIE: Yes. Well, if I look at my agenda at this moment,
14 knowing that tomorrow there will be no time for a hearing, we could
15 cancel the original -- originally scheduled housekeeping session for
16 Friday or continue on Friday morning, but it seems very difficult to
17 avoid that we would have a hearing somewhere next week. I mean, we
18 received submissions from the Croatian government on certain matters
19 where the parties will still have to make their submissions. We have
20 other matters as to how to continue with scheduling. We have the issue
21 of any further information to be received from the Croatian government on
22 the recent investigatory developments. So, therefore, I am afraid that
23 where we tried to deal with all outstanding matters, that it might be
24 necessary to schedule a hearing somewhere in the week to follow.
25 Of course, we could then take one hour on Friday, but that would
1 most likely not help us out very much, because perhaps many of the issues
2 will not be -- have not been made sufficient progress on Friday to
3 further deal with them.
4 So, therefore, I would then suggest that we would leave these
5 submissions on the interviews for next week and deal with some other
6 matters which are of more substance and have a greater impact on the
7 proceedings at this very moment.
8 I'd like to hear from the parties whether they see any way to
9 avoid a further hearing next week, because both in view of what we have
10 to consider in relation to, for example, whether Chamber witnesses
11 will -- when they'll be called, investigatory -- those matters, we can't
12 leave them for weeks. At the same time, we most likely are not ready by
14 MR. KEHOE: Mr. President, on behalf of the Gotovina Defence we
15 think your instincts are correct and I don't think we can avoid a hearing
16 next week. So we would have no objection to merging this hearing on
17 interviewing witnesses to a hearing next week.
18 JUDGE ORIE: Yes. Mr. Hedaraly.
19 MR. HEDARALY: There would be no objection, Your Honour. We can
20 deal with some of these outstanding matters -- practical matters today
21 and then have a hearing next week.
22 JUDGE ORIE: Yes.
23 MR. KAY: We agree.
24 MR. KUZMANOVIC: [Microphone not activated] -- Your Honour.
25 JUDGE ORIE: Yes. Then I move, then, to my next item which is
1 the Gotovina bar table submission. That's the omnibus submission filed
2 on 15th of January, whereas I apparently was inclined to confuse them
3 with the filing of yesterday. But we're now talking about a submission,
4 in which the Gotovina Defence seeks to have admitted into evidence a
5 certain number of documents. They are not sequentially numbered anymore
6 because they were part of a greater -- what I see is that in the -- under
7 the numbers 1 to 9, that we find documents which give further information
8 about enemy military activities which were considered threatening to
9 Croatian forces prior to and following Operation Storm. That's 1 to 9.
10 Then, although, again, it's not sequentially numbered, but then
11 we find a series of work orders for the police. Then, under number 16,
12 we find an autopsy report of which the Chamber wondered whether it is not
13 yet in evidence. If you would please check that and ... I'm just trying
14 to find my list.
15 MR. KEHOE: Mr. President, if I can answer that question on that
17 JUDGE ORIE: Yes.
18 MR. KEHOE: D1227 does not contain the autopsy report, and what
19 we have in our filing does include the autopsy report.
20 So, in the spirit of completeness, we were putting the autopsy
21 report in as well.
22 JUDGE ORIE: Yes. So you would say it adds to what is in
23 evidence, and I'm just looking at whether I'm thinking the same number
24 as ...
25 Yes, so, therefore, this is not a double to D1227.
1 MR. KEHOE: Yes, Mr. President, that's correct.
2 JUDGE ORIE: OTP comments, Mr. Hedaraly.
3 MR. HEDARALY: That's right, Your Honour. We did not know that
4 it was supposed to supplement it, so we can take a look at it. But based
5 on the comments we got from the Gotovina Defence on its relevance, we
6 simply thought that it was a -- it was a duplicate. But we can
7 double-check that.
8 JUDGE ORIE: Well, the biggest risk there is is that we have this
9 document in evidence twice, which is to be avoided. But, at the same
10 time, if we want it move on now --
11 Then that was about number 16.
12 Then there are seven more exhibits numbered somewhere between
13 19 and 65. If I could briefly describe them, it's international stuff
14 introduced through Galbraith and Akashi
15 MR. MISETIC: That's correct, Mr. President.
16 JUDGE ORIE: Having briefly summarised the various categories of
17 documents we find in this omnibus bar table submission, I would like to
18 hear whether there are any objections against admission on any of these
20 MR. HEDARALY: No, Your Honour. As I stated, I see some of them
21 have not been -- the "no objection" has not been inserted, but there are
22 no objections. There are some comments sometimes we have made on these
23 document but none that are objections to their admission.
24 JUDGE ORIE: And they are not missing on the -- on the chart,
25 your comments.
1 MR. HEDARALY: Well, I just see 19, 20, 21. I see there's
2 nothing in the OTP comments column. It could have been an oversight, but
3 there are no objections to their admissibility.
4 JUDGE ORIE: Okay. So therefore, I think that no exhibit numbers
5 were yet assigned to them. Let me just check.
6 No, they have not.
7 Mr. Registrar, could I please ask to you prepare for
8 provisionally assigning numbers on the documents listed in Appendix A to
9 the omnibus bar table submission filed the 15th January. The Chamber
10 decides that when numbers are assigned, that they will admitted under
11 those numbers into evidence.
12 Then there is a still pending Cermak bar table submission in
13 relation to Rule 68 material, which is - and I'm now speaking from my
14 recollection - is all that material dates back from the early 1990s,
15 apart from one, which dates from 2002, if I'm -- if my recollection is
17 Are there any objections against the admission into evidence of
18 the Cermak bar table, Rule 68 material?
19 MR. HEDARALY: I think we had raised some concerns in the past
20 about relevance of those. But based on the Chamber's earlier rulings, we
21 don't have any objections to their admissibility, with that concern still
22 being present.
23 JUDGE ORIE: Yes. I think no numbers have been assigned to them
24 yet. So, Mr. Registrar, in the absence of any real objections, the
25 Chamber will admit these documents into evidence, once they have been
1 assigned exhibit numbers.
2 Next item on my list is the -- the intention expressed, I think,
3 by the Markac Defence to file a bar table submission, in relation to
4 Witness Repinc. We dealt with some of them, I think. But is there still
5 something to be expected, Mr. Mikulicic?
6 MR. MIKULICIC: Yes, Your Honour. Yesterday we did provide to
7 the OTP the list of the documents with an explanation and connection with
8 a relevant footnote in the General Repinc's report, and we are awaiting
9 for the position of the OTP on that one.
10 JUDGE ORIE: I would say typically to be a matter to be dealt
11 with then during next week's hearing, once we have received the
12 submissions filed.
13 Then we leave that.
14 Then we have a -- we have a bar table submission in relation to
15 the testimony of Mr. Penic, which was introduced, organised by names of
16 the people affected, although, apparently, various persons being covered
17 sometimes by one document. All together, this results in nine documents,
18 which have been provisionally assigned now numbers by the Registrar, from
19 D01945, up to and including D01953.
20 These are all decisions to start investigations, and they're all
21 from September 1995.
22 Any objection against admission?
23 MR. HEDARALY: No, Your Honour.
24 JUDGE ORIE: I hear of no objections from any of the other
25 Defence teams.
1 Therefore, D01945, up to and including D01953 are admitted into
2 evidence. And the chart which was attached will serve as assistance to
3 the Chamber but is not evidence.
4 MR. KAY: I'm much obliged, Your Honour.
5 JUDGE ORIE: Then I move on to -- let me just have a look.
6 Mr. Registrar, I would like to invite you to tell us whether you
7 have received any communication by the parties which would possibly
8 result in changes in uploaded documents, replacements of translations,
9 et cetera?
10 MR. HEDARALY: If I can assist, Your Honour, there are a -- there
11 a number of such documents.
12 There's P604 --
13 JUDGE ORIE: Yes. As a matter of fact, I previously discussed
14 with the Registrar that he had a short list of where he received matters
15 which he cannot further proceed with without the approval of the Chamber,
16 and, therefore, I invited him to give the -- to list them.
17 [Trial Chamber and Registrar confer]
18 JUDGE ORIE: Yes, we dealt with P604 and P2644.
19 Then we have an outstanding issue in relation to D1392, where
20 the -- where we need pages 36 and 37 to be uploaded in e-court.
21 MR. HEDARALY: Your Honour, I think there's a problem with the
23 JUDGE ORIE: Apparently the technical difficulty has been fixed.
24 Let me then go back to where we were. I was just saying that
25 there was a problem in relation to D1392, where pages 36 and 37 were
1 still to be uploaded and to have them inserted into this exhibit which
2 needs the approval of the Chamber.
3 Any further observations or submissions in relation to this?
4 If not, Mr. Registrar, you're instructed to have pages 36 and 37,
5 doc ID 3D06-1461 to be inserted in D1392.
6 MR. HEDARALY: Mr. President, there is just -- I'm sorry. There
7 was -- one small observation is that these two pages are not simply the
8 missing pages. They are a translation of the B/C/S original of those two
9 pages and they correspond - we've looked at it - but just so that they're
10 not simply two pages that were missing and found later. They were found
11 from the B/C/S version which was not in evidence, which was not linked,
12 and these portions were translated and inserted in their place.
13 Just wanted to make sure that is on the record, so that we don't
14 think it's simply two pages missing and they were found.
15 JUDGE ORIE: Yes. Relying on this information and to be quite
16 honest it rings a bell but --
17 MR. MISETIC: Mr. President, I'm sorry. I'm informed that
18 actually the two original English pages were found and were circulated
19 this morning. And Mr. Registrar has actually the original English
20 missing pages, so ...
21 JUDGE ORIE: The information on which I relied was from the
22 18th of January, so this is new information, because I was --
23 MR. MISETIC: This morning it was e-mailed.
24 JUDGE ORIE: This morning it was e-mailed.
25 Mr. Hedaraly, just as I was happy to rely on you, would you rely
1 on Mr. Misetic's information.
2 MR. HEDARALY: I would rely on it, if he would be so kind --
3 we'll look at it just to make sure, but that's -- we'll rely on that, and
4 I'm sure Mr. Registrar also has the same ones. But we will obviously
5 double-check, and if we have any concerns, we will raise them; but I
6 don't think it will be the case.
7 JUDGE ORIE: Then, yes, the Registrar is instructed to add the
8 pages 36 and 37, as requested by the Gotovina Defence in its today's
9 e-mail at 8.56.
10 Mr. Registrar, is this sufficient information for you?
11 THE REGISTRAR: Yes, it is, Your Honour.
12 JUDGE ORIE: Thank you.
13 Then the next one is D680, which is about a revised translation
14 amended to Articles 1 and 3. Apparently there's no objection from the
16 Mr. Registrar, you're instructed to replace the translation as it
17 is found now in e-court by the revised translation, as provided by the
19 Then I'd like to deliver a statement concerning the Brioni
20 transcripts, as I announced before.
21 The Chamber would now like to deliver a decision concerning the
22 Gotovina Defence 's submission regarding Exhibit P461, which is the
23 Brioni transcript, filed on the 1st of April, 2009.
24 In the submission, the Gotovina Defence challenged the accuracy
25 of P461, pointing out three categories of mistakes.
1 The first category pertains to several audible portions of the
2 Brioni meeting that allegedly were not transcribed correctly or were not
3 transcribed at all.
4 The second category pertains to passages of the transcript that
5 allegedly have been attributed to wrong speakers. The third category
6 refers to alleged errors in the translation of the transcript. The
7 Gotovina Defence attached to its submission a revised version of the
8 transcript, the transcript currently in evidence as P461, and a table
9 singling out, according to the Gotovina Defence, the differences between
10 the two.
11 The Prosecution responded on the 15th of April, 2009, only
12 agreeing to four changes and objecting to the rest of the Gotovina
13 Defence's version of the transcript. According to the Prosecution, some
14 changes are minor and irrelevant; others cannot be verified without the
15 help of a witness familiar with the conduct of the meeting, the voices of
16 the alleged speakers, or both. According to the Prosecution, the
17 Gotovina Defence failed to provide any source for its proposed changes.
18 The Prosecution concluded that, if the Chamber considers any of the
19 changes proposed by the Gotovina Defence and not agreed to by the
20 Prosecution, to be relevant to any substantive issue in this case, the
21 relevant parts of the transcript should be submitted for independent
22 transcription and/or interpretation, as applicable.
23 With regard to the missing or otherwise incorrectly transcribed
24 parts of the Brioni meeting, the Chamber has selected a number of
25 passages amongst the ones pointed out by the Gotovina Defence. The
1 Chamber directs the Gotovina Defence to extract these passages from the
2 original audio of the meeting and submit them to CLSS for transcription
3 and translation. I'm asking now specific attention for the pages,
4 because a previous draft gave different pages. The Chamber considers the
5 passages at pages 8, 21, 23, 28, and 40 of the Gotovina-generated
6 transcript, and corresponding to pages 7, 18, 19, 23, 26, and 30 of the
7 English translation of P461, to be sufficiently relevant to warrant a
8 revision by CLSS.
9 I add to this that I have not given the Arkan/Orkans page number
10 in the original, although page 26 is mentioned for the English
11 transcript. I didn't have that page available, but it is to be included
12 in the transcript in the original version.
13 With regards to parts of the transcript that have allegedly been
14 attributed to wrong speakers, the Chamber does not consider the alleged
15 mistakes to be of such a level of relevance to the issues in this case as
16 to warrant a complex further analysis in this regard. The fact that the
17 Gotovina Defence has challenged the accuracy of P461 in this respect is
18 on the record, and the contested parts will be treated with the necessary
19 caution by the Chamber when weighing the evidence.
20 With regard to supposed areas in the translation of the
21 transcript, the Chamber considers the alleged mistakes pointed out by the
22 Gotovina Defence at pages 17 and 38 of the Gotovina-generated
23 transcripts, and corresponding to pages 15 and 29 of the English
24 translation of P461, to be sufficiently relevant to warrant a
25 verification of the translation. To this end, the Gotovina Defence can
1 request CLSS to verify the accuracy of these portions of the transcript
2 as in evidence and get back to the Chamber with the outcome of such
4 The Gotovina Defence shall submit the materials to CLSS for
5 verification by Wednesday, the 27th of January, and shall get back to the
6 Chamber as soon as it receives the results from CLSS. The Chamber,
7 considering the advanced stage of the proceedings, requests CLSS to
8 prioritise the verification of P461.
9 And this concludes the decision of the Chamber on the Gotovina
10 Defence's submissions regarding Exhibit P461.
11 We're running out of tape and time. I have not dealt with all
12 the items, but the tape will run out very soon. But what remain on my
13 list is -- are matters that we can deal with in a still to be scheduled
14 hearing next week.
15 Mr. Misetic.
16 MR. MISETIC: Yes, Mr. President, I did wish to raise an oral
17 motion due to its relative urgency.
18 JUDGE ORIE: Yes.
19 MR. MISETIC: The -- as the Chamber knows, the European Union
20 issued correspondence to the Chamber yesterday, I believe, or it is dated
21 the 19th of January. We note that it does not appear that the
22 European Union conducted an investigation outside of his own archives to
23 locate the document and it does not record that any effort was made to
24 contact --
25 JUDGE ORIE: To keep matters short, Mr. Misetic, there is still
1 an outstanding motion. We asked you to wait for a while until we have
2 received the response.
3 May I assume that the Gotovina Defence wants further action to be
5 MR. MISETIC: That is correct, Mr. President. So we make an oral
6 motion for further action.
7 JUDGE ORIE: Further action in the line of what was earlier
8 requested in your earlier motion when no response had been received at
10 MR. MISETIC: That is correct. And in light again of the timing,
11 it is quite urgent for us. Thank you.
12 JUDGE ORIE: Yes, I only had a glance at it. We'll further
13 consider the matter but the response has been received.
14 Any further matter? If not, we'll adjourn, sine die, and the
15 Chamber will inform the parties as soon as possible on the scheduling of
16 a session next week.
17 We stand adjourned.
18 --- Whereupon the hearing adjourned at 1.38 p.m.
19 sine die