Tribunal Criminal Tribunal for the Former Yugoslavia

Page 26996

 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

 7     courtroom.

 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]

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 26997











11 Pages 26997-26998 redacted. Private session.















Page 26999

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

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 list.

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

Page 27000

 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

25     format.

Page 27001

 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

 3     documents.

 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.

Page 27002

 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

24     evidence.

25             JUDGE ORIE:  What, then, to do with the uploaded additional

Page 27003

 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 --

Page 27004

 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 list has been distributed to the parties, from what I

25     understand.

Page 27005

 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

Page 27006

 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

Page 27007

 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,

Page 27008

 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

21     today.

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.

Page 27009

 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.

Page 27010

 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. by the court ushers.

 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

Page 27011

 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

24     together.

25             And then the other issue are the issues --

Page 27012

 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

Page 27013

 1     article.

 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

 8     Defence.

 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

Page 27014

 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.

Page 27015

 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

 5     evidence.

 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

15     e-court.

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.

Page 27016

 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

 4     P2644?

 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

12     MFI'd, Your Honours.  You can also have a -- I have it on the MFI list

13     and the status showed up as MFI, so if we can also admit it into evidence

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.

Page 27017

 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

Page 27018

 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

 9     number.

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

Page 27019

 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

Page 27020

 1     now to be replaced by the correct B/C/S version.

 2             Mr. Registrar, once this has been done, P2382 is no problem

 3     anymore.

 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

Page 27021

 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

17     uploaded?

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.

Page 27022

 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

17     break.

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

24     session.

25             I come back on a few items which we discussed in relation to the

Page 27023

 1     MFI list earlier this morning.

 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,

Page 27024

 1     17th of March, 1998; time 11.47 a.m.," and then it follows:  "Parts of

 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

Page 27025

 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

17     this.

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

21     AL, which I do not know what it stands for exactly.  It 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

Page 27026

 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

15     evidence.

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

Page 27027

 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

10     artillery."

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

Page 27028

 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

Page 27029

 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

20     session.

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

Page 27030

 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, the witness has also been

Page 27031

 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

21     corrigendum.

22             I move to my next matter, but we'll move into private session for

23     that.

24                           [Private session]

25   (redacted)

Page 27032











11 Pages 27032-27041 redacted. Private session.















Page 27042

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

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

25     exactly.

Page 27043

 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

Page 27044

 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

13     Friday.

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

Page 27045

 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

16     document.

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.

Page 27046

 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

19     documents.

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.

Page 27047

 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

16     right.

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

Page 27048

 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.

Page 27049

 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

22     transcript.

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

Page 27050

 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

Page 27051

 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

15     Prosecution.

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

18     OTP.

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.

Page 27052

 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

Page 27053

 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

Page 27054

 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

 3     verification.

 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

Page 27055

 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

 4     taken.

 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

 9     all.

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