Tribunal Criminal Tribunal for the Former Yugoslavia

Page 27056

 1                           Wednesday, 27 January 2010

 2                           [Open session]

 3                           [The accused entered court]

 4                           [The accused Markac not present]

 5                           --- Upon commencing at 2.35 p.m.

 6             JUDGE ORIE:  Good afternoon to everyone.

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

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

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

10     the Prosecutor versus Gotovina, et al.  Thank you.

11             JUDGE ORIE:  Thank you, Mr. Registrar.

12             Today a housekeeping session has been scheduled.  For the first

13     agenda item, I would like to move into private session.

14                           [Private session]

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 27057











11 Pages 27057-27061 redacted. Private session.















Page 27061

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6                           [Open session]

 7             THE REGISTRAR:  We're back in open session, Your Honours.

 8             JUDGE ORIE:  Thank you, Mr. Registrar.

 9             I move on to the next item; that is, that I established that

10     Mr. Markac is not present today in court.  The Chamber understands that

11     it's for medical reasons that is he not with us.

12             I move on to the then next item, which is the issue of witness

13     statements taken by persons who may have been involved in the events at

14     the time.

15             The Prosecution asked leave to reply to what had been submitted,

16     especially, I would say, by the Gotovina Defence, and asked for

17     15 minutes.  You'll be -- the Prosecution has an opportunity to make its

18     submissions in relation to this matter.

19             Ms. Gustafson, please proceed.

20             MS. GUSTAFSON:  Thank you, Your Honour, and good afternoon.

21             Your Honours, I have essentially three issues to address this

22     afternoon in reply to the Gotovina Defence response of the 31st of

23     December, 2009, alleging Prosecution witness interference and contempt.

24             The first issuing is the procedural impropriety of these

25     allegation.  Secondly, I would like to address the substance; and,

Page 27062

 1     lastly, I'd like to briefly address the issue of remedy.

 2             First on the procedural point as Your Honours noted, the context

 3     of these recent allegations of contempt made by the Gotovina Defence is

 4     the Chamber's request for general submissions on the priority of

 5     individuals closely involved in the underlying events taking statements

 6     from witnesses about those events.  It was in that general context that

 7     the Gotovina Defence launched a specific attack alleging criminal

 8     contempt against Prosecution investigator in relation to a witness,

 9     General Forand, who testified 18 months ago.

10             At that time, General Forand testified that his 1996 statement,

11     the statement at issue here, was true, and that it accurately reflected

12     what he told the investigators at the time.  If the Gotovina Defence case

13     was that that statement did not reflect what General Forand said, they

14     had an obligation to put that case to him and give him the opportunity to

15     respond to those allegations.  Instead, they did not object to the

16     admission of that statement, they never put to General Forand that the

17     Prosecution fabricated and manipulated his statement, and they never put

18     to him that he lied or was mistaken when he testified that his statement

19     reflected what he said at the time.  There is no justification for this

20     failure to confront General Forand with those allegations when he was

21     here.  The only alleged evidence of this alleged crime is a document that

22     was used in cross-examination with General Forand.  That is D339, a

23     document showing similarities and differences between General Forand's

24     1996 statement, D330; and his presentation, P401.

25             The closest the Defence ever came to actually putting these

Page 27063

 1     allegations to General Forand was to suggest that the word "panic" that

 2     appears in his 1996 statement may have been included by Mr. Robertsson.

 3     That's at page 4371.  General Forand rejected that suggestion and

 4     explained why the word was his.  The Defence then decided not to take

 5     this issue any further.  That rejection by General Forand is the sum

 6     total of General Forand's evidence on the allegations that the

 7     Gotovina Defence are now making.

 8             If the Defence had properly confronted General Forand with those

 9     allegations when he was here, this issue could have been dealt with

10     quickly and definitively.  Instead, the Defence is now asking the Court

11     to address this issue without the direct witness evidence that was

12     available to them and that they chose not to elicit.

13             Turning now to the substance of the allegations.

14             As a preliminary point, it's important to remember that the

15     attribution of the differences between the General Forand's presentation

16     and his 1996 statement to improprieties of Mr. Robertsson is based on

17     conjecture.  First, it is only the Defence's supposition that

18     Mr. Robertsson drafted General Forand's statement.  There were two ICTY

19     investigators present at the interview, both of whom signed the

20     statement.

21             Second, as I said earlier, General Forand testified that the

22     statement was true.  And third, General Forand testified that as far as

23     he can recall, the interview was conducted in question and answer format,

24     and that he had his presentation in front of him when he answered those

25     questions.  That's at page 4335 and 4350.

Page 27064

 1             Nevertheless, the Gotovina Defence claimed that the only possible

 2     inference is that the Prosecution deliberately manipulated

 3     General Forand's statement.  First, because they claim that there are

 4     passages in that statement that are irreconcilable with General Forand's

 5     presentation; and secondly, they allege that exculpatory evidence that

 6     appears in the presentation is absent from the statement.

 7             I'd like to address each of those in turn.

 8             The Defence claim they cannot reconcile passages in

 9     General Forand's 1996 statement about Serbs leaving due to indiscriminate

10     shelling, firstly with General Forand's remark in his presentation that

11     the HV use of artillery was excellent.  And, secondly, comments in his

12     presentation about the RSK evacuation order.

13             First, whatever General Forand meant by the HV use of artillery

14     being excellent in his presentation, and that is far from clear on the

15     face of the presentation, he could not possibly have meant that it

16     complied with the laws of armed conflict.  General Forand has repeatedly

17     and consistently expressed the view that HV shelling was indiscriminate

18     and unlawful from the moment he first observed and it and reported it

19     until the moment he testified.

20             Particular examples are his 12th of July protest letter, P225.

21     His 4th of August, protest letter, P83.  His 4th of August sitrep, P341.

22     His 1997 statement, P331.  His 2008 statement, P333.  And his testimony.

23     For example, page 4114 to 115.  Not to mention comments elsewhere in his

24     presentation itself.  Such as that the HV shelled UN observation posts,

25     that's page 27; that it conducted heavy barrages on towns and villages on

Page 27065

 1     the 4th of August, page 21; and that it heavily shelled Knin on 5th of

 2     August when it was "undefended and virtually empty," page 28.

 3             So the clarification of the phrase "HV shelling was excellent"

 4     contained in General Forand's 1996 statement is consistent with what

 5     General Forand has stated repeatedly since 1995.

 6             The Gotovina Defence also claimed they cannot reconcile passages

 7     in General Forand's 1996 statement, stating that the shelling forced the

 8     population to flee with remarks in his presentation that an RSK

 9     evacuation order was issued and had some effect.  This claim is also

10     misconceived.  Firstly because it's based on the false premise that there

11     can only be one cause of the departure of the Serb population, and

12     nowhere in his presentation did General Forand state that.  But, in any

13     event, once again, long before he made that statement, General Forand had

14     already expressed his view that the Krajina Serbs fled, due to shelling.

15     And I refer in particular to P400, his 12th of October 1995 statement to

16     the press where he said:

17             "In the view of UN Sector South command, the intensity of the

18     bombardment and real fear of the Croat military advance were the reasons

19     people fled across the border into Bosnia-Herzegovina."

20             It's clear from the evidence that General Forand did not consider

21     his presentation to be irreconcilable that his view that the Krajina

22     Serbs fled due to indiscriminate shelling, and these passages are not

23     irreconcilable as a matter of logic.  There's no basis for the Defence

24     claim that these passages cannot be reconciled, and therefore no bases

25     for the allegation that these passages must have been fabricated.  And

Page 27066

 1     the Defence never put to General Forand that these passages of his

 2     statement were irreconcilable with his presentation; they never put to

 3     General Forand that these passages were Prosecution fabrications.

 4             The Defence is asking the Chamber to draw these conclusions after

 5     they chose not to elicit any direct evidence from General Forand about

 6     them.

 7             I will now briefly address the Defence second claim that the

 8     Prosecution systematically deleted exculpatory material from three

 9     passages of General Forand's presentation.

10             Again, as a preliminary point as I mentioned a few moments ago

11     the attribution of differences between the presentation and the statement

12     to deliberate acts of Mr. Robertsson is based on conjecture.  But in any

13     event the significance of these distinctions have been exaggerated by the

14     Defence.

15             For example, the Gotovina Defence claim that the change from the

16     phrase "we saw no new defensive positions erected" in the presentation,

17     to the phrase "we is saw no defensive positions erected" in the

18     statement, reflects a suppression of exculpatory material.

19             This claim is baseless for at least two reasons.  First of all,

20     the word "new" in this sentence is largely redundant.  If you see a

21     defensive position being erected is, by definition, new.  But, in any

22     event, General Forand testified that he saw no defensive positions at

23     all, at the time that he was in Sector South.  That's at page 4348.

24             So the passage in his statement is true.  It reflects what he

25     saw, and it clarifies the sentence in his presentation.

Page 27067

 1             In light of the time, I will not address the other two passages

 2     that the Defence claim reflect deliberate witness tampering.  Suffice it

 3     to say that an examination of these passages indicates that they, too,

 4     contain minor discrepancies with little, if any, impact on any of the

 5     core issues in this case.  They do not reflect any systematic expression

 6     of exculpatory material.

 7             I will only spend a moment responding to the alleged reasons

 8     motivating Mr. Robertsson to engage in criminal witness tampering.  These

 9     essentially boil down to the fact that Mr. Robertsson is Swedish.  There

10     is no evidence that Mr. Robertsson was pursuing an agenda to vindicate

11     Mr. Bildt and to impute one, as the Defence would have you do, based

12     solely on his nationality is unwarranted speculation.

13             Finally, Your Honours, turning to the remedy.  The Defence have

14     made these allegations, but they have not asked the Chamber for a remedy.

15     The Prosecution is requesting relief from this Chamber.  These

16     allegations of contempt are unwarranted.  The attempt to attribute them

17     to Mr. Robertsson is based on conjecture.  The alleged motivation for

18     witness manipulation is speculation, and the Defence failed to confront

19     General Forand with the allegation that his sworn evidence was fabricated

20     by the Prosecution.

21             This is an unfounded and improper back door attack on the

22     credibility of Prosecution evidence and a Prosecution witness.  It's for

23     that reason that we are asking the Trial Chamber to make a ruling on

24     these allegations and find that they have no merit.

25             The Defence should not be allowed to continue casting these

Page 27068

 1     unwarranted and improper aspersions on a Prosecution investigator, on

 2     General Forand, and on General Forand's evidence.

 3             Your Honour, those are the Prosecution's submissions.  I would

 4     just like to make one correction to the Prosecution's 22nd of

 5     December response on this same issue.  At paragraph 7 of that response,

 6     it states that General Forand's presentation, P401, is mentioned in his

 7     1996 statement; that is incorrect.  It is in fact mentioned in his 1997

 8     statement, P331.

 9             Thank you.

10             JUDGE ORIE:  Thank you, Ms. Gustafson.

11             Mr. Misetic, I think you asked for 10 to 15 minutes.

12             MR. MISETIC:  Yes, thank you, Mr. President.

13             In response, Mr. President, let me state that it is crystal clear

14     on the face of D339 that, to use Your Honour's words when General Forand

15     was here, there are striking resemblances between the government report

16     that Mr. Forand prepared and the ICTY witness statement.  On its face no

17     objective observer could not look at that and say that Mr. Robertsson

18     used that presentation, deleted and inserted items into it, and then

19     submitted it as a witness statement without disclosing what he had done.

20     It's simply completely implausible to suggest otherwise, despite the

21     Prosecution's efforts to blur what took place.

22             The Chamber has made crystal clear throughout the two years that

23     we've been together, or almost two years, when similar issues have arisen

24     concerning how an investigator took a statement, and I can in private

25     session refer the Chamber to at least three instances that has occurred.

Page 27069

 1     The Chamber immediately on the spot said, We would like the party whose

 2     investigator is in question here to be interviewed by that party and to

 3     report back to the Chamber on the circumstances surrounding which how

 4     that statement was taken, including, for example, most recently, the

 5     issue of certifications provided by interpreters.  We all know what, as

 6     officers of the court, we're supposed to do when prima facie there are

 7     suspicious things that have occurred in a witness name.  Almost a full

 8     month after we made our last written submission here, I submit to you

 9     that as officers of the court we all would have expected a report from

10     the Prosecution of their contact with Mr. Robertsson, that they have

11     collected from Mr. Robertsson the circumstances surrounding which how and

12     why he took the statement in the manner that he did, and any reasonable

13     rational explanation he might have as to the "striking resemblances

14     between the two documents."

15             Instead, from the fact that there is no reference to any

16     Prosecution attempt to actually contact the investigator, which has been

17     the standard procedure for two years in this courtroom, we get a long

18     explanation of why things might not be as they appear on their face.

19             Mr. President, and Your Honours, I submit to you that, at this

20     stage that is not what is expected either of Prosecution counsel or

21     Defence counsel.

22             I further submit, Mr. President, that on the issue of whether we

23     put it to Mr. Forand, D339 is in fact what we put to Mr. Forand.  The

24     Trial Chamber clearly understood what we were putting to him.  And, as a

25     matter of fact, the Prosecution ignores the fact that these striking

Page 27070

 1     resemblances were in fact put to Mr. Forand.  They were just put to him

 2     by the Presiding Judge instead of by Defence counsel.

 3             Now, let's go back to how we got here procedurally in the first

 4     place.  It is because of the Prosecution in the Markac Defence case

 5     continually raised the issue of the identity of the Markac Defence

 6     investigators that their mere identity calls into question the

 7     reliability of the statements, although the Prosecution never once

 8     suggested that those investigators did anything improper.  That's why

 9     we're here.  So to now suggest, in reply that, Well, you have to actually

10     have physical proof and have interviewed all parties, including the

11     investigator and the witness, et cetera, before you can make an

12     assertion, ignores the fact that we're only here because the Prosecution

13     suggests otherwise.  And that's procedurally how we got here.

14             Now, on the issue of whether it is contempt or not, our position,

15     Mr. President, is that we have consistently said it is prima facie

16     contempt.  Mr. Robertsson may very well have defences, justifications, an

17     explanation, but that is something that needs to be addressed by the

18     Prosecution with Mr. Robertsson and reported on to the Trial Chamber,

19     particularly, when we look back in at least the three other situations

20     where the Trial Chamber has instructed the Prosecution to go back and ask

21     the investigator what happened.

22             Ms. Gustafson is correct.  We don't know many of the answers to

23     some of these questions.  All we know is what we see prima facie.  It is

24     actually up to the Prosecution to provide the concrete explanations by

25     the investigator in this case.  I will again repeat:  That is what is

Page 27071

 1     expected of us.

 2             I will not address some of the issues raised by the Prosecution

 3     concerning the specifics of Mr. Forand's testimony.  Obviously we are at

 4     a bit of a disadvantage not having received advance notice of citations

 5     to the record by the Prosecution.  I can state off the top of my head,

 6     and I will supplement this later with the Chamber, that in fact,

 7     Mr. Forand is on a video, which I'm almost positive is in evidence, from

 8     early September 1995 from the UN camp where he actually says nothing

 9     improper about the shelling, and he specifically discusses the shelling.

10     So a reference to what Mr. Forand said in 2007 or 2008 or what he said at

11     trial after Mr. Robertson's initial contact with him is not going to be

12     as relevant as what he said on video in early September 1995, which is

13     consistent with what he said in the report to the Canadian Government,

14     and it was only after Mr. Robertson's so-called interview with him that

15     that -- those exculpatory elements were deleted from his witness

16     statement.  And I say deleted purposefully.  General Forand testified

17     that all of the elements in the presentation were in fact accurate.  He

18     testified to that twice.  The question arises, Why did Mr. Robertsson

19     then remove them from the witness statement?

20             It is not up to Prosecution counsel or to us to try to make

21     arguments as to what the weight should be on specific pieces of evidence.

22     It was up to the investigator to deliver all of the evidence of the

23     witness in the form of a witness statement and to turn it over to the

24     ICTY -- I should say the OTP, and let the Trial Chamber ultimately decide

25     what weight should be given to which portions of Mr. Forand's

Page 27072

 1     presentation.  It certainly was not up to Mr. Robertsson to strike

 2     portions of a presentation that General Forand testified in court twice

 3     were in fact accurate.

 4             So any suggestion that Mr. Forand somehow had those portions

 5     removed because he disagreed with them are simply not true because

 6     General Forand testified otherwise.  Which again leads us back to my

 7     point which is this it for Mr. Robertsson to explain, not for Prosecution

 8     counsel to stand before you and try to come up with as many

 9     justifications as possible for how that happened.

10             With respect to the issue of Mr. Robertsson personally, the

11     Prosecution seriously misstates what is our position was.  Nobody

12     suggested it was because of his, quote, nationality.  It was for -- what

13     we did suggest was who his employer was, and his employer was Swedish

14     military intelligence.  Which is, I suggest to you, Mr. President, a

15     substantially smaller number of people in Sweden rather than to say all

16     Swedish citizens.

17             The second issuing is, again, to tie this back to what the

18     initial point of the submissions were, it does appear from the evidence

19     that Mr. Robertsson while he was in Zagreb during and after

20     Operation Storm did have contact with witnesses who testified in this

21     case, as is evident from Annex B to our 17 December submission,

22     Mr. Robertsson worked for the intelligence branch of the UNCRO mission

23     which is referred to as G2.  If you look at Exhibit P84 and D128,

24     General Leslie wrote to the G2 level which would have included

25     Mr. Robertsson after Operation Storm, A, with a memorandum about his

Page 27073

 1     belief that the shelling of Knin was a violation of international

 2     humanitarian law; and, B, Exhibit D128 is actually an order from

 3     General Leslie, I believe it is dated 8th of August, to, amongst others

 4     the G2 level to start collecting evidence for the ICTY.

 5             Mr. President, it -- it is clear that -- or I should say that on

 6     its face, we have a Swedish military intelligence officer working during

 7     and after Operation Storm who apparently has contact with one of the

 8     Prosecution's witnesses, General Leslie, during the initial time-period

 9     after Operation Storm and within three weeks becomes the Prosecution's --

10     one of the Prosecution's co-lead investigators in this very case.

11             Again, rather than coming into court and saying, Well, the

12     Prosecution -- or I should say, the Defence has to prove something beyond

13     a reasonable doubt before the Prosecution will even undertake an

14     investigation, I think, misses what our obligations are.  This is not an

15     issue concerning proof beyond a reasonable doubt of the ultimate issues

16     at trial here.  This is an issue of how the parties present evidence in

17     this case.  Perhaps the Prosecution can ask Mr. Robertsson some

18     questions; did you work there G2?  Did you have contact with General

19     Leslie and other witnesses?  How long did that contact take place?  Were

20     you working for Swedish military intelligence at the time?  How is it

21     exactly that you got the job as the Prosecution's co-lead investigator in

22     this case two to three weeks after Operation Storm?  Is it pure

23     coincidence that just happened you filed an application with the United

24     Nations at the same time?  And finally, did you continue to serve as a

25     Swedish military officer while you were employed by the Office of the

Page 27074

 1     Prosecutor?

 2             These are all the questions I think self-evidently should have

 3     been asked before we came to court, rather than the Prosecution and I

 4     going back and forth about what's corroborated in the record, what's not,

 5     et cetera, I think we should just first get to what the facts are, and

 6     then we can have a debate at a later time.

 7             But, at this point, we don't need to engage there further

 8     speculation as to what Mr. Robertson's motivations were or were not.

 9             Finally, Mr. President, in support of our contention simply that

10     it is prima facie contempt, we have cited and continue to cite the

11     Milan Vujan contempt proceeding.  We do not discount the fact that

12     Mr. Robertsson, again, may have valid explanations for all of this.  But

13     at this point he needs to provide the explanations, and the Prosecution

14     needs to do the same.  That is specifically why we said prima facie

15     contempt and not that it is contempt.  Thank you, Mr. President.  That is

16     our submission.

17             JUDGE ORIE:  Thank you.  Just to avoid any confusion when I used

18     the word "striking resemblance," I think I summarised what Mr. Kehoe was

19     putting to the witness at the time, and where a clear answer had not

20     emerged, that I have chosen those words and not as something that I put

21     to the witness, but I think that I wanted to make clear do the witness

22     what, as far as I understood was put to him, although not in those same

23     words by Mr. Kehoe.

24             MR. MISETIC:  That's fine, Mr. President.  But either way the

25     issue of whether it was put to him, whether you say it was because

Page 27075

 1     Mr. Kehoe -- [Overlapping speakers] ...

 2             JUDGE ORIE:  I'm not argumentative.  I'm just trying to avoid

 3     confusion as to who apparently did something.  But I take it that the --

 4     the reference to what was said, I think it was on the 5th of June, 2008,

 5     should be re-read to know exactly what happened there.

 6             MR. MISETIC:  Yeah, and I'm sorry, I'm not trying to be

 7     argumentative either, I just want the record to be clear that what I'm

 8     suggesting is that matter was put to the witness --

 9             JUDGE ORIE:  Yes, that is clear to me, that you don't give up

10     that point.  And I was just correcting what you said.

11             Mr. Kuzmanovic.

12             MR. KUZMANOVIC:  Thank you, Your Honour.

13             I was struck somewhat today by what turned out to be a Defence of

14     General Forand when the real issue is Mr. Robertsson.  On page 12 of

15     today's transcript, line 3 through 6, Ms. Gustafson stated:

16             "This is an unfounded and improper back-door attack on the

17     credibility," and I submit that this should be -- Prosecution should be

18     substituted -- Defence should be substituted for Prosecution.

19             This all began because the Prosecution didn't seem happy with the

20     fact that Mr. Soljic and Mr. Djurica, two of our investigators were

21     identified as investigators with the ICTY long ago, as the Court has seen

22     through our submission, were involved as investigators in our case.  What

23     the Prosecution has failed to identify to the Trial Chamber is that

24     despite the fact that, for example, Mr. Soljic was our investigator since

25     2004, they contacted him, without our knowledge or consent, on

Page 27076

 1     February 1st of -- on February 24th of 2008 and wanted to talk to him,

 2     which he rejected.

 3             They have not presented one single shred of evidence to show that

 4     Mr. Soljic or Mr. Djurica did anything improper, forced anyone to say

 5     anything that they wanted to say against their will, lied, created

 6     evidence, falsified evidence, changed witness statements, nothing.

 7             As a matter of fact, the only evidence in these submissions that

 8     show that an investigator apparently did something to change a witness

 9     statement was that of Mr. Robertsson.

10             In reviewing the submission of the Prosecution where they discuss

11     specific statement takers, it is patently obvious that after two years of

12     trial, the Prosecution does not understand what the concept of inner

13     control branch is of the Special Police as they state that Mr. Soljic may

14     have an interest in minimizing inner control's responsibility in relation

15     to Special Police crimes in paragraph 23.  Yet they have provided no

16     example of where he did such a thing in any witness statement that was

17     presented in this case.

18             In paragraph 24, they identify Mr. Djurica as being someone who

19     coordinated the police activity in the entire liberated area during and

20     after Operation Storm; yet they know that is not true, because

21     Mr. Djurica was one of several people who were involved from the MUP in

22     co-ordinating activities.  Yet again, there is not one single

23     demonstrated fact in any witness statement that Mr. Djurica did anything

24     improper, unethical, or illegal.

25             Now, I submit to the Chamber, and I support my colleague,

Page 27077

 1     Mr. Misetic, that the only investigator, at least that's the subject of

 2     these submissions, that has the potential for having committed something

 3     that is improper or unethical is Mr. Robertsson.  Yet we have nothing

 4     from Mr. Robertsson because that is the only evidence that has been

 5     presented to the Chamber out of these three investigators that there was

 6     anything done that potentially could have been improper.

 7             The Prosecution has not provided that in any form.  I suppose it

 8     would have been more to the Prosecution's liking had we gotten two

 9     investigators from China who don't speak the language and don't know

10     anyone because then there would be no chance of them having said anything

11     or done anything improper.

12             Finally, as I stated at the beginning of my submission, this

13     submission by the Prosecution has turned into a defence of General Forand

14     and not into a discussion of Mr. Robertsson, or -- and there has been no

15     discussion at all of Mr. Djurica or Mr. Soljic, which was the initial

16     prompt for these submissions.

17             Along those lines I find it interesting that at the end of the

18     Prosecution's submission they state that these circumstances assessment

19     should be made on a case by case basis, based on the totality of the

20     circumstances.  Well, I submit that there is no case here because there

21     is not one single shred of evidence that Mr. Soljic or Mr. Djurica did

22     anything improper.  And I think it is only fitting that Mr. Soljic and

23     Mr. Djurica should receive an apology from the Prosecution for making

24     such an allegation without one shred of evidence.

25             Thank you.

Page 27078

 1             JUDGE ORIE:  Thank you, Mr. Kuzmanovic.

 2                           [Trial Chamber confers]

 3             JUDGE ORIE:  Ms. Gustafson, the Chamber is inclined to stop this

 4     discussion, because the discussion was not about whether investigator A,

 5     B, C, or D behaved improperly, but what the views of the parties were on

 6     hiring investigators who may have been close to the events on which they

 7     take interviews; whereas, most of what we've heard today is about whether

 8     Mr. Robertsson did misbehave or whether there is any evidence that

 9     Mr. Soljic misbehaved, and than was not, as a matter of fact, the primary

10     matter the Chamber was seeking.  We are here not adjudicating any

11     indictments against any of the persons.  So, therefore, if you would like

12     to add something, fine.  But no continuation of evidence against A or B,

13     et cetera.

14             MS. GUSTAFSON:  That's understood, Your Honour, and I appreciate

15     what the Court has to say.

16             I hope it was clear from our request to reply in the first place

17     that we very much did want to respond to specific allegations that had

18     been made against the Prosecution --

19             JUDGE ORIE:  You have not been blamed for -- you asked for an

20     opportunity to reply.  That was given to you.  So, therefore, that's

21     dealt with.

22             MS. GUSTAFSON:  Thank you.  And just one point, just to clarify

23     the record because I'm concerned that after Mr. Kuzmanovic' submissions

24     there may be some lack of clarity in the future.  The Prosecution has not

25     made any allegations against Mr. Franjo or Mr. Soljic, so any suggestion

Page 27079

 1     that we should be providing evidence of allegations that we haven't made

 2     or apologies for allegations we haven't made, I think is unfounded.  But

 3     I would just like to make that point clear.

 4             Thank you.

 5             JUDGE ORIE:  Thank you.

 6             Then this matter has been dealt with.

 7             I move on to my next item of the agenda, which is admitted

 8     exhibits with outstanding issues.

 9             First one is D420, two originals against one translation.  The

10     originals apparently, although similar, not being exactly the same and

11     from different points in time.

12             Yes, Mr. Car I don't remember.

13             MR. CARRIER:  Good afternoon, Your Honour.

14             This was a document that the issue was raised duration

15     Mr. Pejkovic's testimony, I am sure Your Honour recalls.

16             The Chamber's suggestion was that we sit down and go through the

17     document.  We asked twice of the Markac Defence to do that.  They

18     informed us that they didn't have time to do that.

19             We had our own language assistant look through it.  There are

20     still pieces in the English document that don't appear in the B/C/S

21     document.  That being said --

22             JUDGE ORIE:  Which B/C/S document?  We have two B/C/S versions --

23     no, we have one B/C/S version -- let me just -- one is April.

24             MR. CARRIER:  I think it's March and ...

25             JUDGE ORIE:  Yes.

Page 27080

 1             MR. CARRIER:  March and April.

 2             JUDGE ORIE:  March and April, yes.

 3             MR. CARRIER:  There was one that was a true translation, and that

 4     was uploaded, I think, on the day that Mr. Pejkovic testified.  We don't

 5     really have an issue with that.  It's the original translation, so there

 6     is one -- my understanding is there is one B/C/S version, and there's two

 7     translations.  There's one that is marked original, which is, I believe,

 8     a PDF of that document that was uploaded.  There are still pieces that

 9     are missing.  We're content with the English document, as that seems to

10     be the more complete document.

11             Just as an example, there's roughly 2.5 pages missing in the

12     B/C/S version that appear in the English version at -- this is in the

13     English document, 3D06-0109 from the 14th line on that page, continuing

14     on -- onto 3D06-0112.  That's missing in the B/C/S, pages 3D00-1252 on to

15     the top the page 3D00-1253.

16             Just as an illustration that there are pieces that are still

17     missing in the B/C/S document.  I believe there were two pages that were

18     uploaded.  I had another notation.  And that's been corrected.

19             The Markac Defence has indicated to us that they have reviewed it

20     and they are satisfied that they are identical documents.  Obviously

21     there's still an issue, but we're satisfied with the English document.

22     If that's what's going to be relied on by the Markac Defence for any

23     purpose, the Prosecution's content.

24             JUDGE ORIE:  Mr. Kuzmanovic, is there anything you would like to

25     ... Oh, Mr. Mikulicic, anything you would like to submit?

Page 27081

 1             MR. MIKULICIC: [Interpretation] Your Honour, apart from being a

 2     bit confused by what Mr. Carrier said, that the Defence, due to a lack of

 3     time refused to cooperate, we informed the Prosecution by an e-mail that

 4     we agree that the English version of the document is fine and that, as

 5     for Defence, the English version of the document can be considered an

 6     original or the other way around.  So it is our position that actually

 7     both the Croatian and the English versions of the document are original,

 8     because the document is originally made bilingually, in both languages.

 9     However, if the Prosecution prefers the English version, then we agree

10     that the English version be considered as the original.

11             There is another issue here, and that's the issue of the annex

12     which has 18 pages.  We submitted a draft translation, but, at the same

13     time, we requested from the CLSS to submit an official translation to us.

14     We have not received it yet, but at the moment when we receive it, then

15     we shall, of course, remove the draft version and upload the official

16     version of the translation.

17             As for the two pages that were missing, that was obviously an

18     error when the document was uploaded into e-court.  We inserted them

19     afterwards so this error has also been corrected.  And, actually, at this

20     moment, I do not see where the problem is.

21             If the English version of document satisfies our colleagues from

22     the Prosecutor's office then Markac Defence is absolutely agrees that

23     this version should be considered as the original and, at the same time,

24     I note that the draft version which is uploaded will be changed with the

25     official version of the translation as soon as we receive it from the

Page 27082

 1     CLSS.

 2             JUDGE ORIE:  We will deal with the matter.

 3                           [Trial Chamber confers]

 4             JUDGE ORIE:  Unexpectedly, something has come up which needs my

 5     very urgent attention.

 6             Therefore, we take the break earlier, and we resume at 4.00.

 7                           --- Recess taken at 3.30 p.m.

 8                           --- On resuming at 4.07 p.m.

 9             JUDGE ORIE:  I would like to thank the parties for their

10     understanding for the early break.

11             As far as D420 is concerned, it seems that everyone can live with

12     the evidence as it has been filed in its various forms, once completed.

13     Therefore, apart from the technical improvements, the Chamber has decided

14     that it will leave those versions in evidence.

15             I hear of no comments or no requests for reconsideration.

16             Then I'd like to move on.  D215, incomplete translation, which

17     means either upload the portions not translated in translation, or strike

18     the corresponding portions in the original, the B/C/S.

19             MR. WAESPI:  Yes, good afternoon, Mr. President.

20             In fact there are two other exhibits that are linked to this

21     exhibit.  They both concern the same cabinet meeting of the 5th of

22     October.  This is D214 and P2678.

23             And we suggest that we translate the whole meeting so we have a

24     complete record.

25             Might also relate to one of the witnesses -- so our -- our

Page 27083

 1     suggestion is to have a complete translation of this governmental

 2     meeting.  And then combine the three existing exhibits.

 3             JUDGE ORIE:  Yes.  Well, whether or not a -- one number should be

 4     assigned to it or that the same document would appear even perhaps with a

 5     -- with a kind of a cover sheet, referring to another exhibit, that is

 6     still to be seen.  But can all parties live with the whole of the

 7     Croatian Government session of the 5th of October, the whole to be

 8     admitted into evidence, and all portions to be translated.

 9             MR. MIKULICIC:  We have no objection on that.

10             JUDGE ORIE:  Then we'll move, as you suggested.  You'll take

11     care, Mr. Waespi, you inform our Registrar, once the whole of the

12     document has been uploaded and when all the translations are ready, after

13     having informed Mr. Mikulicic.

14             MR. WAESPI:  We'll do that.

15             JUDGE ORIE:  Then we'll move on to D533.

16                           [Trial Chamber and registrar confer]

17             JUDGE ORIE:  Hereby, the Registrar is also given permission to

18     replace D215 by the whole of the document of which it is part now.

19     That's the Croatian government session held on 5th October 1995 and the

20     translations attached to it.

21             We move on to D533, the ICRC booklet.  Does it exist in English?

22     What should be translated?  What should not be translated?

23             MR. MIKULICIC: [Interpretation] Your Honours, I requested the

24     original booklet from the International Red Cross in Geneva, and I

25     received it yesterday.

Page 27084

 1             However, now when I compared the two, it is different from this

 2     booklet which has been admitted under D533.  By examining the booklet, as

 3     for the Markac Defence, I think that it is sufficient to translate the

 4     first 16 pages, but I have been informed that Mr. Waespi also requested

 5     this booklet with a different title, and so the other one, when it is

 6     received, could be admitted into evidence as an original document.

 7             JUDGE ORIE:  Now, so there is a chance that we get -- I take it

 8     that we are -- in the B/C/S original we're talking about a historical

 9     version.  You may have received the recent one, Mr. Mikulicic.  Of

10     course, I do not know.

11             I take it that Mr. Waespi is then seeking the best version he can

12     get hold of.

13             MR. WAESPI:  I did send the B/C/S original to the ICRC and asked

14     for the English equivalent.  And they said it does exist, and he -- said

15     they would mail it to me, and I anticipate that I will receive it at the

16     end of this week, and then we can compare whether it's the identifies

17     identical version.

18             JUDGE ORIE:  Yes.  Then we will see whether you see it together,

19     if we have an identical version in English, then that one should be

20     uploaded as well and be attached to the B/C/S original.  If not, then I

21     expect the parties to agree on the pages which are in need of being

22     translated.  And looking through the booklet, I would also consider the

23     first portion of the booklet, also where it explains the laws of war,

24     international humanitarian law, that that may be the most relevant part

25     to be translated.

Page 27085

 1             MR. MIKULICIC:  It is, Your Honour.  If you look through that

 2     exhibit, D533, then we can realize that the first 16 pages of the booklet

 3     is really relevant for our purposes.

 4             JUDGE ORIE:  Thank you.

 5             Then I move on to D1791 to D1794.  They are documents under seal.

 6     Therefore, I would like to move into private session.

 7                           [Private session]

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 27086











11 Pages 27086-27087 redacted. Private session.















Page 27088

 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   (redacted)

16   (redacted)

17   (redacted)

18                           [Open session]

19             THE REGISTRAR:  We're back in open session, Your Honours.

20             JUDGE ORIE:  Thank you, Mr. Registrar.

21             Next item, P2529 to P2531, Markac suspect interviews.

22             Here we have a bit of a similar problem as we had with the Cermak

23     interviews.  I do understand that the Prosecution wants to upload a

24     corresponding B/C/S version?

25             MS. MAHINDARATNE:  Yes, Mr. President.  We have sent those

Page 27089

 1     documents to the Defence, and we have got a response from the

 2     Markac Defence that they have no objections to the -- corresponding B/C/S

 3     version as well as the missing text to be uploaded.  But we haven't heard

 4     from the other two parties.

 5             JUDGE ORIE:  Yes.  That brings me to the second point that you

 6     want to insert the missing text into P2530, which is one of these three

 7     documents.

 8             Earlier we dealt with similar matters, and the procedure followed

 9     was that, in P2530, it should be marked where text is missing.  The

10     pagination should remain the same, in order to avoid that we are working

11     from various versions of the document, mixing up repeatedly the

12     pagination.  And then to upload a document with the additional text, the

13     missing text, as indicated in the original; and then to give a new

14     exhibit number to that additional document containing all the missing

15     text and the references to where it should have been in the original.

16             I can imagine that you do it by asterisks and numbers.  That is a

17     technicality.  Perhaps you have a look at how it was done with the Cermak

18     interview.

19             MS. MAHINDARATNE:  We'll do that, Mr. President, we'll follow the

20     same course.

21             JUDGE ORIE:  Yes.  Then the next item ...

22                           [Trial Chamber and legal officer confer]

23             JUDGE ORIE:  Mr. Registrar, permission is granted to the uploaded

24     -- the newly uploaded B/C/S versions to replace the previous ones.  And

25     could you already assign a number to a document still unknown but that is

Page 27090

 1     the document which will contain the missing text in P2530.  The number to

 2     be reserved for that would be ...

 3             THE REGISTRAR:  The number reserved for that purpose will be

 4     P2708.  Thank you.

 5             JUDGE ORIE:  Yes.

 6             I take it, Ms. Mahindaratne, that you will first give to

 7     Mr. Mikulicic for inspection, and that we'll then later hear from you.

 8             MS. MAHINDARATNE:  I will do so, Mr. President.

 9             JUDGE ORIE:  The next document is a document which was discussed

10     during the testimony of Mr. Granic, 65 ter number 7525.  If I could just

11     briefly refer to that as the Kinkel's letter.  We do understand that the

12     Prosecution intended to tender it, but that it was forgotten.

13             I don't know who to address.

14             MR. WAESPI:  It wasn't forgotten, but we -- it was discussed in

15     court, and I think we only had an article in the German newspaper, and

16     then we asked the German Government to search it -- for it and give it to

17     us, and we received it and forwarded it to the Defence, translated it.

18     So it is available now to be tendered from the bar table.

19             JUDGE ORIE:  Yes, any objections?

20             MR. MIKULICIC:  No objections, Your Honour.

21             JUDGE ORIE:  I hear of none of the Defence teams, any objections.

22             Mr. Registrar, 65 ter 7525 would receive number ...

23             THE REGISTRAR:  Your Honours, that document shall receive Exhibit

24     P2709.  Thank you.

25             JUDGE ORIE:  And is admitted into evidence.

Page 27091

 1             JUDGE ORIE:  Next item, P2643, is a newspaper article about

 2     conversations between Witness Skegro and Mr. Tudjman and was tendered

 3     through Mr. Skegro.

 4             Now, the underlying transcript of the conversation, which,

 5     apparently, dealt with a political slush fund, was received.

 6             Now, having received the transcript of the conversation, is there

 7     any need to keep P2643, which was MFI'd, to continue to -- to seek it to

 8     be tendered?

 9             MR. CAYLEY:  Your Honour, actually, just to comment on what

10     you've said, in fact it is the newspaper article P2643 that suggests a

11     political slush fund.  If you read --

12             JUDGE ORIE:  Yes, I was referring to what is in evidence.

13     Mr. Cayley, what is not yet in evidence, of course, the Chamber cannot

14     refer to that.

15             MR. CAYLEY:  Yes.  The transcript -- our position would be, I

16     have reviewed the transcript, my learned friend has provided it to me, I

17     have read all it.  It is not all relevant to this issue.  There are

18     discreet pages that are relevant to the issue that was raised in the

19     newspaper, and they would be pages 6 to 8.  And Mr. Waespi has also

20     suggested that we provide page 1 to give a date.  In fact the date of the

21     meeting referred to in the newspaper article is wrong.  It says it took

22     place on the 13th of October; in fact the meeting took place on the 14th

23     of October of 1999.  But our preference would be exactly as Your Honour

24     has suggested, that the transcript of meeting go in which provides a very

25     different account than that in "The Independent" newspaper, and that the

Page 27092

 1     newspaper article simple be vacated.  It doesn't assist on the issue,

 2     really, because the transcript provides the accuracy which Your Honours

 3     were seeking.

 4             Thank you.

 5             JUDGE ORIE:  Mr. Kehoe.

 6             MR. KEHOE:  Yes, Mr. President, on this score, this document, and

 7     I'm trying to get the actual date, is 14 October 1999, and certainly

 8     outside the time-frame of this indictment.  But assuming arguendo this

 9     document is being offered by the Office of the Prosecutor to somehow

10     challenge Mr. Skegro's credibility, there is no indication that there is

11     anything illegal about what is transpiring here.  The money that he is

12     putting aside, is putting aside for payment, I don't know under Croatian

13     law if it is proper or improper.  Having had some experience with

14     election laws and campaign laws in the United States, they are oftentimes

15     counterintuitive.  I can't speak to what the law is in Croatia.  If they

16     can somehow make some proffer that what Mr. Skegro was doing was illegal,

17     was dishonest, was a crime, then I think that there is palpable argument

18     that might go to his credibility, but absent that, and certainly on the

19     face of the transcript, there is no indication that there's anything

20     improper whatsoever.

21             JUDGE ORIE:  Mr. Waespi.

22             MR. WAESPI:  Yes, I am actually not prepared to enter into a

23     debate about that, because it was, unfortunately, Mr. Hedaraly's witness.

24     But I understand for transparency reasons, it would certainly be relevant

25     to have this document tendered as Mr. Cayley has suggested.  We are fine

Page 27093

 1     if the newspaper article gets replaced by this one; it provides context

 2     to the conversation Mr. Skegro attended to.

 3             So from my perspective I think it should be admitted.

 4             In relation to what.  Mr. Cayley said, the relevant pages are, in

 5     English, pages 5 to 8, and in corresponding B/C/S, it would be 6 to 11,

 6     and also both cover pages should be admitted as well.

 7             MR. KEHOE:  Mr. President -- [Microphone not activated] ... a

 8     brief response to the comments by counsel?

 9             JUDGE ORIE:  Yes, please.

10             MR. KEHOE:  Mr. President, the transcript indicates that

11     Mr. Skegro is talking about paying salaries and pensions.  On the issue

12     of transparency, that counsel refers to on page 36, line 7, what

13     transparency?  Or line 6, excuse me.  What transparency?  Transparency

14     with regard to what?

15             The only reason this could be remotely, and I use the adverb

16     remotely in this instance relevant to this, is if it go to the witness's

17     credibility.  And absent some indication that what this man was doing was

18     illegal, improper, elicit in some fashion and, i.e., I'm talking about

19     this money to pay salaries and pensions, unless the Prosecution can show

20     that that is somehow elicit, it's completely irrelevant.  There is no

21     transparency issue here; it's a very simple issue of credibility.  And

22     the Prosecution has not presented that piece of evidence that would link

23     this to a credibility claim.

24             JUDGE ORIE:  Yes.  I see the point.

25             Mr. Waespi, you said Mr. Hedaraly is not present.  Let's be very

Page 27094

 1     practical.  I think everyone agrees that P2643 should not further be

 2     pursued.  Now, whether or not to replace it by the transcript, Mr. Kehoe

 3     challenges the -- the probative value in terms of challenging the

 4     credibility of the witness.

 5             I suggest -- I got the impression that you're feeling a bit at

 6     unease, not knowing the details on what exactly was meant with that.

 7     Would there be a possibility which would be the following:  That

 8     Mr. Hedaraly briefly explains to Mr. Kehoe what exactly he wants to

 9     achieve; and, Mr. Kehoe, you certainly will not agree with that.  There's

10     no problem with that.  But whether that could be reasonably argued by the

11     other party and then to see whether or not your -- your objection stands

12     or not.  And from what I understand, the worst that could happen is that

13     a document which does not in any way affect the credibility of the

14     witness would be in evidence.

15             MR. KEHOE:  I understand, Mr. President.  I will do that.

16             JUDGE ORIE:  Mr. Cayley.

17             MR. CAYLEY:  Could I just as one last thing.

18             I understand the sentiments of Mr. Kehoe, what he is saying, but

19     the reality is the allegation was put in the transcript to Mr. Skegro,

20     and in fact, quite rightly, as Mr. Kehoe is saying, this document, the

21     real underlying basis for the newspaper article demonstrates that in fact

22     there was no impropriety; this was a discussion between a finance

23     minister and his president about the payment of salaries and pensions and

24     the utilisation of funds for that purpose.

25             So in that sense it will give clarity to the judges if they can

Page 27095

 1     see the transcript because it demonstrates that what the Prosecution were

 2     putting through the newspaper article was not accurate.

 3             JUDGE ORIE:  Let's say you would even tender it in order to --

 4             MR. CAYLEY:  Simply to demonstrate the point exactly what

 5     Mr. Kehoe is making, that there's actually no basis for the allegation

 6     that was put to the witness during his cross-examination.

 7             JUDGE ORIE:  Mr. Kehoe, would this change your mind, this --

 8     these words of Mr. Cayley?

 9             MR. KEHOE:  Not really, judge.  With all due respect to my

10     learned friend, I would pursue a short conversation with Mr. Hedaraly so

11     we can discuss it, and then if we can report back to the Chamber promptly

12     I would ask if we could travel down that course of action at this

13     juncture.

14             JUDGE ORIE:  Yes.  If the parties continue to disagree on the

15     matter, then, of course, the Chamber will decide on admission, or not,

16     but one thing is for sure, that P2643 will be vacated then but could be

17     used and could be provisionally assigned to the transcript, which would

18     then be MFI'd and still to be decided upon.

19                           [Trial Chamber and legal officer confer]

20             JUDGE ORIE:  Perhaps it would be a better suggestion - it didn't

21     come from myself - to decide that P2643 will not be admitted.  If we

22     vacate the number, it will disappear entirely from the record, but then

23     it is still somewhere there as a document which we decided not to admit,

24     and then to assign a new number to the transcript of this conversation.

25             I do understand that it would be pages 6 to 11 in the B/C/S, and

Page 27096

 1     5 to 8 in the English translation --

 2             MR. CAYLEY:  In terms of saving the amount of paper that we have,

 3     Your Honour, the number of pages, actually it is a discreet issues

 4     between pages 6 and 8 in the English version.  Mr. Skegro basically went

 5     through a series of different issues, and this issue appear in English

 6     transcript between pages 6 and 8 and ends at the end of 8.

 7             JUDGE ORIE:  I'm now a bit confused because we started with 6 to

 8     8.  Then I heard 5 to 8, English translation, and 6 to 11 in B/C/S.

 9             Could the parties, perhaps when discussing the matter,

10     Mr. Cayley, perhaps you could join Mr. Kehoe and Mr. Hedaraly.

11             MR. CAYLEY:  It would be my pleasure, Your Honour, yeah.

12             JUDGE ORIE:  Yes, and then to also discuss exactly what pages are

13     there to be uploaded and on which the Chamber will have to decide --

14             MR. CAYLEY:  Yes.

15             JUDGE ORIE:  -- to see that what is tendered and what is not

16     tendered is clear to the Chamber.

17             Then, having dealt with this one, we'll assign -- perhaps --

18     either it will be admitted, in which case it needs a number.  Either it

19     will be tendered and for the Chamber to decide, in which case, it would

20     need a number as well.

21             Mr. Registrar, the number to be provisionally assigned to the

22     conversation between Mr. Skegro and Tudjman, as appear in the transcript

23     would receive number?

24             THE REGISTRAR:  It will receive Exhibit P2710.  Thank you.

25             JUDGE ORIE:  And the Chamber would like to hear from the parties

Page 27097

 1     on the shortest notice.

 2             Then there are a few exhibits for which new translations are

 3     available and where the Registrar needs our permission to upload the

 4     revised translations.

 5             The first one is D494, a pass for entering the Knin garrison.

 6             Cermak Defence has uploaded a -- the missing second page into

 7     e -court.

 8             MR. CAYLEY:  That's correct, Your Honour.  It's under document

 9     ID 2D181243.

10             JUDGE ORIE:  And permission is given to Mr. Registrar to replace

11     the old D494 with the new one with the missing page added to it.

12             The next one is P1280.  That is a map where previously there was

13     no translation with it.  It has been received.  We do understand there is

14     no disagreement between the parties, and there's no objection against

15     adding the translation to the -- to P1280.

16             Hearing of no protests, Mr. Registrar is given permission to add

17     the translation to P1280.

18             Next one, P604, a revised translation was provided by the OTP.

19     It is about a UNHCHR, it reads, but is it the -- letter which was --

20                           [Trial Chamber and Legal Officer confer]

21             JUDGE ORIE:  Yes, I always mix them up, the UNHCR and the UN --

22     and the UNHCHR, this is the United Nations High Commissioner for Human

23     Rights letter which was tendered through the Witness Rehn.

24             Mr. Registrar, leave is granted to replace the original

25     translation by the revised translation.

Page 27098

 1             P2592, and perhaps it still reads on your agenda P2595, but

 2     apparently we're talking about P2592, which is minutes of a governmental

 3     session which was tendered through Witness Sterc.  A revised translation

 4     was received, and in the absence of any objections to that, Mr. Registrar

 5     is given permission to replace the translation by the revised

 6     translation.

 7             Last one, P2698, Law on Areas of Special State Concern, a

 8     document which was tendered through Witness Bagic, a revised translation

 9     was received.  I hear of no objections.  Under these circumstances,

10     Mr. Registrar is given permission to replace the translation by the

11     revised one.

12             I move to number 7, joint submission of agreed facts, submitted

13     by the Cermak Defence and the Prosecution on the 14th of January, 2010.

14     There seems to be agreement between the Cermak Defence and the

15     Prosecution.  The Chamber just wanted to be sure that the Gotovina and

16     the Markac Defence had no objections to it, or even would join in this

17     submission.

18             MR. MISETIC:  On behalf of the Gotovina Defence, we join,

19     Mr. President.

20             MR. MIKULICIC:  As well, Your Honour.

21             JUDGE ORIE:  Then the joint submission of agreed facts is now a

22     submission jointly filed by the Cermak Defence, Markac Defence,

23     Gotovina Defence, and the Prosecution.  That's now on the record.

24             I move to the next item on my list.  That is, the intention, as

25     we understand, by the Gotovina Defence to tender parts of the

Page 27099

 1     Prosecution's opening statement in the case against Mr. Karadzic.

 2             MR. MISETIC:  Yes, Mr. President, that would be 65 ter 1D3053.

 3     Similar to the situation with the Jovica Stanisic OTP final trial brief,

 4     we attempted to have these as agreed facts.

 5             JUDGE ORIE:  The Prosecution took the position that a -- similar

 6     to the position they took with the Jovica Stanisic OTP pre-trial brief,

 7     that they couldn't agree to them as agreed facts, but had no objection if

 8     we tendered them as evidence.  I do understand that it is two pages only.

 9     Is that ...

10             MR. MISETIC:  I believe that's correct, Mr. President, yes.  Yes,

11     it is.

12             MR. WAESPI:  Yes, that's correct, Mr. President.  The

13     Stanisic/Simatovic opening pre-trial brief was D1625.  And as Mr. Misetic

14     pointed out, we -- these are obviously facts the Prosecution intends to

15     lead in another case, and that's our comment.  But we do not object to

16     these two pages coming into evidence.

17             JUDGE ORIE:  Yes, and I hear of no objections from any other

18     parties, Mr. Registrar, the excerpt of the Prosecution's opening

19     statement in the Karadzic case would receive number?

20             THE REGISTRAR:  Your Honours, it will receive Exhibit D2019.

21             JUDGE ORIE:  And is admitted into evidence.

22             For the next item, I would like to move into private session.

23                           [Private session]

24   (redacted)

25   (redacted)

Page 27100











11 Page 27100 redacted. Private session.















Page 27101

 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   (redacted)

16   (redacted)

17   (redacted)

18                           [Open session]

19             THE REGISTRAR:  We're back in open session, Your Honours.

20             JUDGE ORIE:  Thank you, Mr. Registrar.

21             Markac Defence bar table submissions.  I think the tables were

22     still missing.  Is this -- are they complete now?  It's -- it's documents

23     which were introduced through Witness Repinc.

24             MR. MIKULICIC: [Interpretation] Yes, Your Honour.

25             Right after the end of Mr. Repinc's testimony on the 19th of

Page 27102

 1     January, we sent to our colleagues from the OTP our bar table motion for

 2     their comments, but it was only this morning that we received the OTP

 3     response, where they object to several items listed in our document.

 4             We still need some time before we go through their various

 5     objections and discuss them.

 6             So, at this stage, a complete list has not been agreed for

 7     admission as an exhibit.  We will, of course, be in touch with our

 8     learned friends from the OTP and try and find agreement on the points

 9     that the OTP objects to.

10             JUDGE ORIE:  The Chamber will further hear from you.

11             I move on to the --

12             MR. MISETIC:  Mr. President.

13             JUDGE ORIE:  Yes, Mr. Misetic.

14             MR. MISETIC:  Mr. President, we've done some checking.  And

15     looking back at the last housekeeping session, the omnibus bar table

16     submission was not formally admitted.  I'm looking at transcript page

17     27047, line 7 through 11.  You instructed the Registrar to provisionally

18     assign numbers, and when the numbers are assigned, that they will -- they

19     will be admitted under those numbers into evidence.

20                           [Trial Chamber and legal officer confer]

21             JUDGE ORIE:  Yes, as always in law it's a matter of

22     interpretation of these words, whether it was a conditional admission

23     that they submitted once, uploaded, and assigned numbers.

24             To avoid whatever confusion, the line just quoted by you has to

25     be understood as that they would be admitted, and therefore they are now

Page 27103

 1     admitted, although now we have five of them to be admitted -- not to be

 2     admitted but admitted, but now being under seal.

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

 4             JUDGE ORIE:  Then the next item I've got on my agenda is the

 5     information provided by the Cermak Defence, that you would like to raise

 6     an ongoing and upcoming bar table submissions.  Mr. Cayley.

 7             MR. CAYLEY:  Yes, Your Honour, two discrete issues.

 8             First of all, the first bar table submission relates to your

 9     order of the 7th of August of 2009 concerning Rule 68 material that you

10     ordered the Prosecution to disclose to us which they have done on a

11     rolling bases.  We have had 18 batches of material so far.  The last

12     batch arrived on the 19th of January of 2010.  The ongoing review

13     resulted in one bar table submission, and in fact relating to what you

14     have just said to Mr. Misetic, exhibit numbers were allocated between

15     D01994 and D02018, and I'm anticipating that those documents are admitted

16     into evidence based on what you've just said to Mr. Misetic.

17             We are still reviewing material.  Indeed batch 14 concerned

18     122 witness statements that have been disclosed to us, and that may

19     result in a further bar table submission by us, and indeed any further

20     material that the Prosecution serve on us.  That's the first issue.

21             The second issue is we would like to respectfully put the Court

22     on notice that we may -- we will be presenting to the Court a

23     miscellaneous omnibus bar table submission in due course in order to

24     assist the Court in its determination, and we will doing that in the next

25     few weeks.  And that's unrelated to the Rule 68 material.

Page 27104

 1             JUDGE ORIE:  Yes, we will then see what it is.  If it is a bar

 2     table submission it will first be disclosed to the Prosecution.  We'll

 3     hear their comments; whether there is any objections, we will hear about

 4     that.  Although it is not the intention of this Chamber to go on forever

 5     with receiving new evidence, at the same time for the Rule 68 material

 6     the reason is quite clear for the omnibus miscellaneous -- [microphone

 7     not activated]... once there was a time that we had bar table

 8     submissions, but we have not only omnibus submissions but even omnibus

 9     miscellaneous bar table submissions.

10             But we'll then look at it if it comes, whether there are

11     acceptable reasons to deal with the matter and to present evidence in

12     this way.  That's -- we can't anticipate on what we will find there.

13             MR. CAYLEY:  I'm obliged, Your Honour.  Thank you.

14             JUDGE ORIE:  Then, as far as the ...

15             As far as exhibit numbers -- and I'm a bit confused if I look at

16     the record.  Exhibit numbers were allocated between ...

17             Could you please repeat that because ...

18             MR. CAYLEY:  D01994 and D02018, 35 documents.

19             JUDGE ORIE:  Yes.  I got a bit nervous when I saw it on the

20     transcript as D10994, but as I thought it might have been a mistake.

21             You correctly understood that D1994 and D20 -- up to and

22     including 2018 are admitted into evidence.

23             MR. CAYLEY:  Thank you, Your Honour.

24             JUDGE ORIE:  Then I move to the next item on my agenda, which is

25     the Markac Defence still being behind in reading out its witness

Page 27105

 1     summaries for the public.

 2             MR. KUZMANOVIC:  Your Honour, have I them.  Just for your

 3     information, it is Witnesses Granic, Cvrk, Pejkovic, Pavlovic, and Moric.

 4     And I don't know if the Court wishes me to read them now, or wishes me

 5     to --

 6             JUDGE ORIE:  I would like you to at least to wait until we have

 7     done with the other agenda items, because another way of dealing with the

 8     matter is to have them filed as an alternative.  It is not what is the

 9     preference of the Chamber.  We usually prefer them to be read when the

10     witness appears, so that it's easier to understand any further questions

11     that are put to the witness.  But I'm afraid that that purpose is lost

12     already anyhow.

13             So, therefore, let's see where we are, once we have finalised the

14     agenda and then to see whether -- how to proceed, whether we would invite

15     to you read them or whether we'll invite to you file them.

16             We move into private session.

17                           [Private session]

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 27106











11 Pages 27106-27112 redacted. Private session.















Page 27113

 1   (redacted)

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 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11                           [Open session]

12             THE REGISTRAR:  We're in open session, Your Honours.

13             JUDGE ORIE:  Thank you, Mr. Registrar.

14             We have received a submission by the Markac Defence dated 26th of

15     January.  Defendant Mladen Markac is joinder and supplement to Defendant

16     Ante Gotovina's additional submissions, in response to the

17     Trial Chamber's invitation of the 18th of December, 2009.  Briefly

18     referred to as the freezing matter.

19             The Chamber will consider that, and the Chamber expects, since

20     the invitation was there already for a while, does not expect any further

21     submissions in relation to this.

22             MR. KUZMANOVIC:  Thank you, Your Honour.

23             JUDGE ORIE:  Then next item on the agenda is that -- I think we

24     should put on the record that the Defence case of the Markac Defence has

25     been closed, although there are still some outstanding bar table

Page 27114

 1     submissions which, of course, are not closed by establishing that the

 2     case presentation has been closed.  So we'll deal with those further.

 3             Finally, and this is a -- we're now in open session.  I would

 4     inform the public that the parties are already aware of that, but I would

 5     like to inform the public that the Chamber has decided to call certain

 6     Chamber witnesses and that we will issue Scheduling Orders in due course.

 7             Let me just check.

 8                           [Trial Chamber and legal officer confer]

 9             JUDGE ORIE:  I'd like briefly return into private session.

10                           [Private session]

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 27115

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7                           [Open session]

 8             THE REGISTRAR:  We're back in open session, Your Honours.

 9             JUDGE ORIE:  Thank you, Mr. Registrar.

10             I think there was another request for an extension of time, one

11     or two days, where the time-limit has -- has been passed already.

12             Mr. Waespi, forgive me, that it was a filing, the 4th of January,

13     I think by the Gotovina Defence, in which you were supposed to respond

14     within three weeks under the specific Chamber's order.

15             MR. WAESPI:  Yes, that's correct, Mr. President, the dead-line

16     was yesterday, and we had to make additional consultations, and I think

17     we are filing now, perhaps within these hours.

18             JUDGE ORIE:  And that was on what matter exactly?

19             MR. WAESPI:  It was on -- for that we would need to go into

20     private session.

21             JUDGE ORIE:  Yes.

22             MR. WAESPI:  Although --

23             JUDGE ORIE:  If -- one or two days on whatever it is related to

24     the 4th of January, yes, I think, I know.

25             MR. WAESPI:  It is about lifting the confidentiality of certain

Page 27116

 1     documents.

 2             JUDGE ORIE:  It's about lifting the confidentiality of documents.

 3     One or two days, no objections?

 4             MR. MISETIC:  No, Mr. President.

 5             JUDGE ORIE:  Then we are looking forward to your filing of today,

 6     Mr. Waespi.

 7             Then I have no further matters apart from number 15.

 8             Anything else from the parties it reads?  Anything we have not

 9     raised and which should be raised?

10             MR. MISETIC:  Mr. President, my standard question about the

11     European Union, any --

12             JUDGE ORIE:  The Chamber is -- if I say the Chamber is

13     considering the matter, I would say the Chamber is actively considering

14     the matter and is thoroughly discussing the matter.  There is a motion

15     before there was a response, then there was response, then there was an

16     additional oral motion to -- to proceed with the matter, and it's all

17     this that we are considering at this moment.

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

19             JUDGE ORIE:  Any further matter?

20             If not, my last ...

21                           [Trial Chamber and legal officer confer]

22             JUDGE ORIE:  Yes, there was one remaining issue.

23             Mr. Kuzmanovic, you have them in your hands.

24             Could I hear from the parties whether they consider it useful

25     them to be read out on this Wednesday afternoon in sequence, or whether

Page 27117

 1     it would be appropriate to have them filed.

 2             MR. KUZMANOVIC:  Your Honour, while I would enjoy entertaining

 3     everyone reading this, I think we will file it, if that's all right with

 4     the Chamber.

 5             JUDGE ORIE:  I'm looking at the other parties, I see no strong

 6     opposition to your --

 7             MR. KEHOE:  I think Mr. Kuzmanovic should read them alone.  We

 8     should all leave; just leave him here with poor Arlene, and he can read

 9     them through.  We have no objection, Mr. President.

10             JUDGE ORIE:  Mr. Kehoe, have you ever heard of delegation of

11     tasks?  You might be a candidate for -- if it is just reading out and

12     not --

13             The Chamber exceptionally allows you to file them,

14     Mr. Kuzmanovic, rather than to read them in court.

15             MR. KUZMANOVIC:  Thank you, Your Honour.  I'm sure the

16     court reporter is very happy about that, and so are the interpreters.

17             JUDGE ORIE:  Yes.  Not to say you, yourself, isn't it?

18             Then if there are no other matters we adjourn, sine die.

19                            --- Whereupon the hearing adjourned at 5.33 p.m.,

20                           sine die