Tribunal Criminal Tribunal for the Former Yugoslavia

Page 28494

 1                           Wednesday, 21 April 2010

 2                           [Open session]

 3                           [The accused not present]

 4                           --- Upon commencing at 9.11 a.m.

 5             JUDGE ORIE:  Good morning to everyone.

 6             Mr. Registrar would you please call the case.

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

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

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

10             JUDGE ORIE:  Thank you, Mr. Registrar.

11             Judge Gwaunza is, for urgent personal reasons, not able to sit

12     today.  The parties may have noticed that she is recovering and that she

13     has to take additional rest.  The remaining Judges, Judge Kinis and I,

14     have decided that it is in the interests of justice to continue hearing

15     this case, special today, where we are dealing with -- I couldn't say

16     administrative matters, but at least we're not hearing evidence.

17             Let me start with an issue that came up yesterday.  I remember

18     that I was rated an A, I think, by Mr. Kuzmanovic in geography.  The

19     parties had an opportunity to review the -- no, perhaps I first put on

20     the record that the accused are not there and leave was granted yesterday

21     not to be present in court for obvious reasons.

22             Now, for the other parties -- I'm not asking whether you share

23     the rating but whether you would agree with what I said, whether you

24     agree on the ridge of 300 metres high where both, to the west and to the

25     east, the terrain was lower, either by 40 or by 60 metres.

Page 28495

 1             MR. HEDARALY:  We have looked at the map, Your Honour, and looked

 2     at your description of it, and we are in full agreement with that

 3     description.

 4             JUDGE ORIE:  Yes.

 5             MR. KUZMANOVIC:  Having given you an A, judge, and looking at it,

 6     I can't now say that it is worse.  So we agree.  Thank you.

 7             JUDGE ORIE:  May I take it that the other parties.

 8             MR. KEHOE:  No objection, Mr. President.

 9             JUDGE ORIE:  Same to you.

10             MR. KAY:  No objection, Your Honour.

11             JUDGE ORIE:  It's not a matter of no objection.  It's a matter of

12     agreeing on what I -- whether the parties stipulate what I said that that

13     is what the situation of the terrain is, because no one has sought

14     admission into evidence off map.

15             MR. KEHOE:  Mr. President, we stipulate.  I looked at the map and

16     I stipulate.

17             JUDGE ORIE:  Mr. Kay, it is not of vital importance to your case.

18             MR. KAY:  It is not.

19             JUDGE ORIE:  Then I take it that you do not oppose --

20             MR. KAY:  No

21             JUDGE ORIE:   [Overlapping speakers] ... as a fact.  Information

22     for the parties, the information about the arrival of the next witness to

23     be examined was yesterday very, very late that he would arrive this

24     morning.  I have not received yet confirmation of that.  But on the basis

25     of the information, it is very likely that he will arrive and that we

Page 28496

 1     could start hearing his evidence tomorrow, which would meet,

 2     Mr. Kuzmanovic, some of your concerns for early next week.  That's now

 3     put on the record.

 4             I would like to move on.  Exhibit D408.  In court, a video was

 5     played which was longer than the transcript that was uploaded by the

 6     General Gotovina Defence on e-court.  And the Gotovina Defence now wishes

 7     to replaced the incomplete transcript by the proper and longer

 8     transcript, and I do understand that it has been uploaded and --

 9             MR. KUZMANOVIC:  Excuse me, Your Honour.

10             Is it video or audio?  Because I think it's audio.

11             JUDGE ORIE:   If that is the case, I made a mistake.

12             Could we then check with Mr. Registrar how it is described in

13     D408 at this moment.

14             MR. MISETIC:  Mr. President, if I can assist.  The exhibit

15     description says audio, but in the housekeeping description, we

16     accidentally put video-clip.  And I think that is where the discussion is

17     from.

18             JUDGE ORIE:  That's where the confusion is from.

19             MR. MISETIC:  Yes, and in e-court it does identify it as an audio

20     excerpt.

21             JUDGE ORIE:  Yes.

22             Mr. Registrar, you are instructed to put the longer transcript in

23     place of the shorter one, which was previously admitted.

24             MR. MISETIC:  Mr. President, just for the record if I may, the --

25     the doc ID is 1D72-5285 of the new exhibit.

Page 28497

 1             JUDGE ORIE:  Is that sufficient information for you

 2     Mr. Registrar?

 3             THE REGISTRAR:  It is, Your Honour.

 4             JUDGE ORIE:  Thank you.

 5             Then we move on to the next item, which is about agreed facts.

 6             On the 19th of April, the Chamber has received the Prosecution's

 7     motion to strike the Markac stipulation to sections of the Prosecution's

 8     pre-trial brief.  The reason was that the Prosecution considers the

 9     Markac Defence stipulation is misquoting the Prosecution's pre-trial

10     brief.

11             Now, the question arises whether the stipulation should be

12     stricken or that the Chamber, verifying whether it misquotes, can draw

13     its conclusions from that.  The stipulation, of course, if it is

14     misquoting the Prosecution's pre-trial brief, will lose in value.

15             MR. HEDARALY:  That's fine with us, Mr. President.  We simply

16     wanted to point out that it was not accurately representing the pre-trial

17     brief.  And then, of course, the Chamber may -- may take whatever

18     recourses it needs as appropriate in this case.

19             JUDGE ORIE:  Yes.

20             Then there was another matter in relation to agreed facts.  There

21     is an agreement between the Prosecution and the Cermak Defence on facts

22     which are contained in two joint filings.  The first one dating from the

23     14th of January; the second one of the 14th of April.  Now, the Chamber

24     wonders whether the Gotovina Defence and the Markac Defence would join in

25     the agreement on those facts.  They are, I would say, primarily facts

Page 28498

 1     which took place before 1995.  It mainly refers to events that took place

 2     on from 1991, and the background of it is that it would avoid litigation

 3     on crimes committed or events which apparently were prejudicial and where

 4     Croatians were victims.

 5             To the 14th of January, a map was attached which sets out --

 6     well, in more detail or clearly, where the places are which are described

 7     in -- in the -- in these facts.

 8             In the 14th of April submission, we find facts which also appear

 9     in the Martic Judgement.  The Chamber asked itself  whether it could have

10     been presented as -- as facts we could take judicial notice of, but I

11     think it is more appropriately done now by agreeing on it because some of

12     these facts include certain judgements such as casual relationships,

13     et cetera, which are not exclusively facts but which go a bit beyond

14     that.

15             Well, Prosecution and Cermak Defence agree on it.  What's the

16     position of the Gotovina Defence?

17             MR. KEHOE:  We agree as well, Mr. President.

18             JUDGE ORIE:  You join in the agreement of the facts presented,

19     14th of January and 14th of April of this year.

20             Mr. Kuzmanovic.

21             MR. KUZMANOVIC:  And we do as well, Your Honour.

22             JUDGE ORIE:  Then we have an agreement between all parties on the

23     facts contained in the 14th of January filing and the 14th of

24     April filing of this year.

25             MR. KAY:  Shall I advise Your Honour further on this matter.

Page 28499

 1     There is -- there is still some further matters to be concluded as

 2     between the Cermak Defence and the Prosecution on the batches that were

 3     disclosed, but they are being done extremely expeditiously, I can inform

 4     the Court.  And in the time available, we have been trying to reach

 5     agreement with Mr. Waespi on what can and what cannot be agreed.  But it

 6     is a matter that is being constantly given attention.

 7             JUDGE ORIE:  So there's more to follow.

 8             MR. KAY:  There is more to follow, Your Honour.

 9             JUDGE ORIE:  We'll have a look at it once it's there, and if the

10     other parties could already have a look at it as well so that they could

11     already, without further delay, either join or express that they disagree

12     so that the Chamber knows where we are.

13             My next item -- for my next item, we have to move into -- into

14     private session.

15                           [Private session]

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 28500











11 Pages 28500-28501 redacted. Private session.















Page 28502

 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                           [Open session]

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

16             JUDGE ORIE:  Thank you.

17             The next item on my agenda deals with D214, D215 and P2678.

18     We're talking about the transcripts of the 277th Closed Session of the

19     Government of the Republic of Croatia held on the 5th of October, 1995,

20     and that is how D215 is described.  The exhibit was tendered through

21     Witness Gojanovic on 19th of May, 2008.

22             D214 is a -- does summariously reflect the meeting and contains

23     the text of a decree, I think.  But it is not a full transcript of that

24     meeting, and it's accompanied by a translation.

25             D215 is a transcript-like document which is accompanied by an

Page 28503

 1     incomplete translation.

 2             Now, P2678 is a document which seems to contain both the

 3     summarious report on that meeting in D214 and also the transcript of

 4     D215.   This exhibit contains a full translation of the summarious part

 5     and what appears to be still a partial translation of the transcript.

 6     What the Chamber would like to hear is whether the Chamber has now in

 7     D214, D215, and P2678 and the associated translation, whether we now have

 8     a complete translation of both this summarious part and the transcript

 9     part, which are in evidence.

10             MR. HEDARALY:  Mr. President, I believe the Chamber does not have

11     that yet.  The translation is completed.  We sent it to the

12     Markac Defence on the 12th of April.  I think because of these witnesses

13     coming, they didn't have a chance to get back to us.  As soon as we get

14     their confirmation that that translation is fine, it can be sent to Mr.

15     Registrar to be linked to those exhibits.

16             JUDGE ORIE:  I suggest that we keep the numbers, because

17     reference is made to them during testimony of witnesses, but that we then

18     finally establish that the full translation, then uploaded, where we put

19     that.  I think the best would be to have it at P2679 [sic].

20             The Chamber then will further hear from the parties --

21             MR. HEDARALY:  It's P2678, Mr. President, just to clarify the

22     record.

23             JUDGE ORIE:   Yes.  I do agree with you that I started saying

24     P2678 and then I made a mistake.

25             Then the Chamber still has to give instructions to the Registrar

Page 28504

 1     on quite a number of exhibits for which now the translations have been

 2     provided.

 3             It concerns D970.  The revised translation should replace the

 4     earlier one.

 5             D530, same report.

 6             D424, same report.

 7             D487, same report.

 8             D561, same report.

 9             P455, same report.

10             And then the last one is D533, where the English translation,

11     meanwhile provided, is to be attached in e-court to that exhibit.

12             Mr. Hedaraly.

13             MR. HEDARALY:  If I can simply add, D389 on the list as well.  I

14     know the Gotovina and the Prosecution has -- have been in communication

15     about a correction to our translation, and they have agreed to it, so we

16     simply add that as well to the --

17             JUDGE ORIE:  Yes.  D389 appears on the list of -- under item 9.

18             MR. MISETIC:  Yes, Mr. President, I am instructed.

19             JUDGE ORIE:  There I read that you have announced that you would

20     request a change to the end of paragraph 4, which was the result of a

21     request by the OTP and than you would like to read the paragraph:

22             "The fire was later directed as D1300, Kaplara Barracks, the Tvik

23     factory, the railway junction, residential buildings at the foot of the

24     Knin fortress and elsewhere."

25             MR. MISETIC:  Yes, Mr. President, and for the record, the new

Page 28505

 1     document is doc ID 1D72-5284.

 2             JUDGE ORIE:  And that revised translation will replace the

 3     translation which was uploaded until now attached to D389.  And we have

 4     dealt with item 9 of your list, Mr. Misetic.

 5             I would now like to move to --

 6             MR. MISETIC:  Mr. President.

 7             JUDGE ORIE:  Yes.

 8             MR. MISETIC:  One issue is brought to my attention with respect

 9     to D970.

10             JUDGE ORIE:  D970, yes.

11             MR. MISETIC:  It's item 11 on our list.

12             JUDGE ORIE:  Yes.  What, as a matter of fact, yes, please

13     proceed.

14             MR. MISETIC:  Well, first, for the record, the new doc is doc

15     ID 1D72-5258.  We ask that that be linked in e-court, and we're also

16     requesting that Exhibit P1205 be removed from the record because it is a

17     duplicate of D970 and still has an incorrect translation attached.

18             JUDGE ORIE:  Now D970, I dealt with that, and you now gave the

19     doc ID which certainly will assist the Registrar.

20             P1205 is not on your list?

21             MR. MISETIC:  It's in the housekeeping, in the -- in the task

22     section of item 11.

23             JUDGE ORIE:  Oh, it's on the MFI list.  We'll deal with that.

24     What I had in mind is that we'll now deal with the MFI list.  After that,

25     we had established what we had dealt with already as a pending issue or

Page 28506

 1     that we had dealt with already on the MFI list, and then to look at what

 2     remained on your list as matters we have not dealt with yet.

 3             So, therefore, I suggest that we now move to the MFI list.

 4             And I would like to start with P979.  The Gotovina Defence has

 5     objected to the translation of the -- objected to the original

 6     translation which included a reference to "of prisoners," which you say

 7     did not exist in the original.

 8             The OTP then had the document re-translated and that the

 9     Gotovina Defence, on the 24th of February, has approved the revised

10     translation in an e-mail communication.

11             Has the revised English translation been uploaded into e-court?

12             MR. HEDARALY:  It has been.  And it is in the hands of

13     Mr. Registrar, as I understand.

14             JUDGE ORIE:  Mr. Registrar, could you confirm that?

15             THE REGISTRAR:  Hereby confirm.

16             JUDGE ORIE:  Then may I take it that the Markac and

17     Cermak Defence have no objections to the revised translation to replace

18     the translation, which is, at present, in P979?

19             Mr. Registrar, you are hereby instructed to replace the old

20     translation by the new one.

21             My next item concerns P2710.  It is a transcript of an interview.

22     It's about -- between Skegro and Tudjman, and the Gotovina has objected

23     to admission as it having no probative value.

24             MR. KEHOE:  Yes, Mr. President.  I discussed this with Mr. Waespi

25     and my understanding is that the OTP has withdrawn this exhibit.

Page 28507

 1             JUDGE ORIE:  Yes, that's what exactly what I wanted to do,

 2     inquire into the outcome of the communication between the parties in

 3     relation to this document.

 4             MR. HEDARALY:  Since Mr. Waespi is not here, I thought that I

 5     should confirm it on the record that that is my understanding as well.

 6             JUDGE ORIE:  Yes.  Then you withdraw that exhibit which means,

 7     Mr. Registrar, that P2710 is vacated.

 8             I move on to P2712.  The Gotovina Defence has objected to

 9     admission of a transcription of a press conference which was given by

10     Mr. Radic on the grounds that it was not disclosed, and that - let me

11     see - it was not disclosed to the Gotovina Defence beforehand.

12             MR. KEHOE:  I can cut this short.  I talked this over with

13     Mr. Waespi, and the Gotovina Defence is withdrawing their objection to

14     the document.

15             JUDGE ORIE:  Which means, because there were no objections by the

16     other parties, that P2712 is hereby admitted into evidence.

17             I move on to P2715.  There, Mr. Kehoe, I think it is a map, you

18     asked, on the 2nd of March of this year, for more time to examine the

19     document.  The Gotovina Defence has informed the parties and the Chamber

20     that they do not have any objections anymore to the admission of the

21     document into evidence.

22             I see you're nodding yes.  Which means that there's nothing which

23     further opposes the admission into evidence.

24             P2715 is admitted into evidence.

25             D2022, which is a Defence exhibit, and it's an audio exhibit.

Page 28508

 1     The OTP objected to admission because it needed more time to review -- or

 2     review an audio is a bit odd -- but to -- the audio and to -- what the

 3     Chamber would like to know is what the position of the OTP is at present.

 4             MR. HEDARALY:  Your Honour, I don't think we had objected.  We

 5     had wanted to reserve until we heard the full audio we had, and we don't

 6     have anything to add.  So there is nothing preventing admission.

 7             JUDGE ORIE:  Then D2022 is admitted into evidence.

 8             Now I come to a last -- no, it's the semi-last item on my agenda,

 9     which deals with D2030, up to and including D2037.

10             The Markac Defence tendered these exhibits for impeachment

11     purposes:  We have OTP witness statements; we have OTP suspect

12     interviews; Croatian Official Notes and interviews.  The witness, through

13     which these documents were tendered, has not made any 92 ter

14     attestations.  The Chamber, before the start of the testimony of Chamber

15     witnesses, informed the parties that when it comes to cross-examination

16     of a Chamber witness, the party will be able to read into the record

17     portions of previous statements alleged to be inconsistent with any

18     evidence given by the witness during his testimony, in order to challenge

19     the witness's credibility.

20             Now, that's not what was done in relation to these previous

21     statements, which may be understandable, because it was quite -- quite

22     some material.  Now, the Prosecution has not objected to admission but

23     has also pointed at this guidance of the Chamber.

24             The Gotovina Defence said that they would need more time to

25     review the documents.

Page 28509

 1             The position of the Cermak Defence does not transpire very

 2     clearly from the transcript.

 3             What I'd like to hear is, from the Markac Defence, whether they

 4     consider that this could be admitted under 92 ter, or 89, or whether

 5     there are any -- they see any problems in admission, and under what Rule

 6     they consider they could admit it.

 7             And I'd like to hear from the other parties, the other Defence,

 8     what their position is, in relation to the -- I would say the

 9     technicality of how to introduce this in evidence.

10             Mr. Kuzmanovic.

11             MR. KUZMANOVIC:  Thank you, Your Honour.

12             I think Rule 89 really would be the pertinent Rule through which

13     to move these statements into evidence.

14             Given the fact had -- as the Chamber is aware, had we read more

15     than smaller portions of these statements to the witness, I think we

16     would still be here examining the witness, given the length of time it

17     took to begin with.

18             So I think, for purposes of completeness and overall evaluation

19     of the witness, his testimony and given the multiple previous statements

20     the witness made, I think, in particular for this witness, it is

21     important to have the availability of those documents to reflect upon

22     later for all the parties as well as for the Chamber.

23             JUDGE ORIE:  Perhaps I first ask the Gotovina Defence.

24             MR. KEHOE:  Yes, Mr. President.  In theory, we don't have an

25     objection.  But I believe my concern at the time was what aspect of these

Page 28510

 1     statements are we using for impeachment purposes, because I seem to

 2     recall, and pardon me if I'm not completely clear on this, I seem to

 3     recall that the statements covered a variety of different topics.

 4             Maybe I can consult on the break with counsel and come to some

 5     agreement.  I do apologise that I haven't done that prior to this time,

 6     but I'm just not certain that everything that's in all of these

 7     statements is pertinent.

 8             JUDGE ORIE:  Yes.

 9             Mr. Kay.

10             MR. KAY:  Well they want be 92 ter as they weren't subject to

11     that procedure.

12             JUDGE ORIE:  No.  And I, think, as a matter of fact, for the

13     purposes indicated by the Markac Defence, that it's almost not feasible,

14     because an attestation would require that the witness says that what is

15     put on paper reflect what is he said.

16             MR. KAY:  Mm-hm.

17             JUDGE ORIE:  But also that he would give the same answers, and

18     for impeachment purposes, of course, the gist of it is that he gave

19     different answers in court, and he can't give two answers at the same

20     time when he has given a solemn declaration.

21             So, therefore, apart from whether it was -- whether there is an

22     attestation, it is even difficult to imagine how, under those

23     circumstance, you would ever obtain such an attestation.

24             MR. KAY:  Absolutely.  And 92 bis doesn't arise.

25             JUDGE ORIE:  No.

Page 28511

 1             MR. KAY:  They were used for impeachment purposes, the passages

 2     that were used, and, in my view, that is as far as the issue can go,

 3     because the other matters within that statement didn't form part of the

 4     evidence in the trial or part of the witness's evidence.  And it would be

 5     wrong in those circumstances to admit in evidence as evidence of the

 6     truth, because that's what it would be sought to be relied upon, for

 7     without those matters being examined in the first place within those

 8     statements.

 9             So the procedure adopted by the Trial Chamber, whereby the

10     passages were put for impeachment purposes, because the witness did not

11     come into the court with a pre-existing statement upon which our

12     procedures were to thereafter flow, in my submission, was the evidently

13     right way to deal with the matter and that does not make the statements

14     themselves exhibits in their entirety.  It's the passages that were put

15     to him that form part of the record.

16             JUDGE ORIE:  Yes.  Now what are the consequences of this.  Would

17     that mean that you say, Therefore, the statements, various sources,

18     should not be admitted; or would you say, They can be admitted, but the

19     only thing the Chamber is expected to do to look at inconsistencies in

20     those statements compared to what he testified in court so that it

21     exclusively serves impeachment purposes, that is, to establish that there

22     are inconsistent previous statements?

23             MR. KAY:  Yes.  I mean, one way -- very helpful way by Mr. Mak is

24     that the statements can be redacted and those passages that were put in

25     are the passages that become part of the evidence in the sense that they

Page 28512

 1     were put to him to deal with.  That is one way of doing it.

 2             Reading into the record actually has the same effect because --

 3             JUDGE ORIE:  Yes, but was not done.

 4             MR. KAY:  That is -- yes.  We're finding another device that --

 5     that marries the systems up.

 6             Otherwise, with statements like that, from a witness like that,

 7     you have a load of back-door material and the next thing we know, we're

 8     countering allegations by the OTP that he said this, that he said that,

 9     and it's not actually what the evidence was concerned with in the one

10     week that he was here, and it did not take that form of presentation.

11             And I would submit that the Court has to be very precise and

12     accurate here with a witness who has this amount of material around him,

13     much of it -- well, all of it originating from the OTP, as I remember.  I

14     can't remember --

15             JUDGE ORIE:  Not all of it.

16             MR. KAY:  Was there an independent statement [Overlapping

17     speakers] ...

18             JUDGE ORIE: [Overlapping speakers] ...

19             MR. KAY:  There were Official Notes, yes.

20             JUDGE ORIE:  There were OTP witness statements.  I think I just

21     listed them, OTP suspect interviews which, of course --

22             MR. KAY:  Yes.

23             JUDGE ORIE:   -- are a bit different, but also Croatia Official

24     Notes and interviews.

25             MR. KAY:  Yes.

Page 28513

 1             JUDGE ORIE:   Yes.

 2             MR. KAY:  That -- that's the way we -- we submit this should be

 3     dealt with.

 4             JUDGE ORIE:   Yes.

 5             Mr. Kehoe.

 6             MR. KEHOE:  Yes, Mr. President, I think that Your Honour outlined

 7     exactly how we should proceed, in your page 18, line 8 through 13, with

 8     it being used purely as a prior inconsistent statement and not a

 9     substantive evidence either through 92 ter or 92 bis.

10             JUDGE ORIE:  Yes, Mr. Hedaraly.

11             MR. HEDARALY:  Thank you, Mr. President.

12             The first thing that I'd like to point out is that I think a

13     different technical rule may apply with respect to the OTP statements and

14     the Official Notes and statements of investigative judges, as those

15     latter ones were not taken for the purposes of this proceeding.  And we

16     have had Official Notes in the past submitted into evidence, often

17     following some litigation.  So those, in our view, are admissible under

18     89(C) and no problem arises there.

19             The problem of the OTP witness statements, obviously, is a

20     different one.  And as Your Honour has pointed out, Rule 92 ter could not

21     apply even if we had tried to ask the witness the questions, because, by

22     definition, he did not agree with what was in there.  So the remaining

23     question is whether, in the view of the Chamber, admitting it only for

24     impeachment purposes, or if someone would spend one day reading it in the

25     record, would be an expectation to Rule 92 ter and, therefore, be

Page 28514

 1     admissible for the limited purpose of impeachment under Rule 89(C).

 2             JUDGE ORIE:  Yes.  Now, one problem then - but please correct me

 3     when my understanding is wrong - remains.  That is, a full attestation

 4     under Rule 92 ter establishes, at least, that what is written down on

 5     paper reflect was the witness said.

 6             Now whether we are considering a statement for the truth of the

 7     content of the statement or for establishing or assessing the credibility

 8     of the witness, it still is extremely important to know whether the

 9     witness at least admits - apart from whether it's the truth or not - that

10     what is put on paper is what he said.

11             And, Mr. Kuzmanovic, it's -- it comes even more as a surprise

12     that it is the Markac Defence who included Official Notes for those

13     purposes, because if you want us to look at it, in order to assess the

14     lack of credibility of the witness, then, of course, that's only

15     reasonable if the Official Notes would reflect what he said.

16             MR. KUZMANOVIC:  Sure, Your Honour.  And if we did include

17     Official Notes in that -- those ten documents, it was an error on our

18     part.  We did not want Official Notes included, as the Court is aware of

19     what our position is on Official Notes.  So that is a mistake on our

20     part.

21             It is essentially the statements that the witness gave to the OTP

22     and the statements that the witness gave before the investigative judge

23     in Croatia, excluding Official Notes.

24             JUDGE ORIE:  Yes.  When then, of course, raises the issue whether

25     the Prosecution might want to have the Official Notes, because they take

Page 28515

 1     a different view on Official Notes, and also where there's not -- no, let

 2     me say the following.  For you to pick and choose the ones where you have

 3     no attestation but where you consider the statement reliably reflecting

 4     what was said and others where you say not; of course, the main

 5     difference is that the Official Notes - and that's emphasised again and

 6     again - cannot be used in evidence in the country where they were

 7     produced.

 8             Now, whether that's decisive or not is another matter.  But this

 9     create as additional little problem that you say, Those and those and

10     those, yes, but others not.

11             MR. KUZMANOVIC:  I understand that, Your Honour.  The statements

12     that the OTP took in this case were taken for specific purposes of this

13     case, and, as we did with the last two witnesses who also gave OTP

14     statements, there was considerable amount of evidence, or if you want to

15     call it evidence, read to them from those statements.

16             However, given the volume and the extent to which the witness in

17     questions [sic], OTP statements were used and relied upon, it was simply

18     not feasible or possible to sit there and read multiple passages from

19     that witness's OTP statements in order to have an efficient

20     cross-examination of the witness.  It took a week, as it was.  And it's

21     not any attempt, Your Honour, for us to, you know, split hairs or find a

22     way around any certain rule.  I think with this particular witness, it's

23     important, given the number and volume of information that he has -- has

24     stated that has been put down on paper, for us to be able to reply on

25     that, to cite it in our brief, to talk about it in closing arguments.

Page 28516

 1     And for us to be able to do that with credibility, you need to have the

 2     backup documentation that you can cite to.

 3             So the reason to include portions of the OTP statements that,

 4     essentially, we feel or whatever parties feels -- contradicts what the

 5     witness said at the time of trial, is necessarily important for argument

 6     purposes.

 7             So it is our position, and I understand that dilemma the Chamber

 8     is facing, it is our position that under Rule 89, we're entitled to move

 9     these statements into evidence for purposes of impeachment of this

10     particular witness.  And if we need to, we can sit down and we'll find a

11     way to, perhaps, redact what isn't relevant or what the witness didn't

12     talk about, and we can maybe get a stipulation from the parties on that

13     particular issue, so there are no extraneous issues to be admitted.  I

14     mean, it's a volume of material to be review, and we all already reviewed

15     it once, so I am assuming, you know, that we can probably take the

16     leading oar on this and review that, at least as far as OTP statements

17     are concerned.

18             And the judicial statements that were given in Croatia were much,

19     obviously, much shorter and were read to the witness into the record, I

20     think during the course of his examination.  So there is a practical way

21     to try to resolve it, given the legal issue involved with regard to

22     evidence, and I think that is a possible way to resolve it.

23             JUDGE ORIE:  Yes.  Then the --

24             Mr. Hedaraly, any comments on this.

25             MR. HEDARALY:  I just wanted to -- when the Chamber asked that

Page 28517

 1     the witness, at least, has to confirm that that is what he said, that for

 2     the OTP statements, which in the Prosecution's submissions are the one

 3     that are problematic because of Rule 92 ter, those were videotaped as

 4     well.  So that may be a factor to take into consideration, although the

 5     witness may not confirm that he has, in fact, said those words, that may

 6     be something that the Court may want to take into account as well.

 7             JUDGE ORIE:  Well, that may be true for the suspect interviews,

 8     but I think it's not true for all of the witness statements.

 9             MR. HEDARALY:  That's correct, Your Honour.  There is one witness

10     statement that that would not apply to.

11             JUDGE ORIE:  Yes.  Now, then, the final question not touched upon

12     by the parties is -- but I'd -- let me just ask your views on the matter.

13     The use of the statements or part of the statements - I'm not at this

14     moment differentiating between Official Notes or suspect interviews which

15     are well recorded or witness statements which are not recorded in a

16     similar way - but it is quite a bunch of material, you exclude for the

17     possibility that the Chamber could use parts of that for the truth of the

18     content what was said then, being inconsistent with the testimony given

19     in court but, nevertheless, used the statements rather than the

20     testimony, which is -- well, not without precedent in this Tribunal.  I'm

21     not hinting at anything, but I would like to cover the whole problematic

22     and complex procedural area.

23             MR. KUZMANOVIC:  It is, Your Honour, and, you know, you brought

24     it up today and obviously we're all trying to think on our feet to figure

25     out what the resolution might be, and I'll give it -- definitely give it

Page 28518

 1     some more thought on my end.  I think when you look at this witness, or

 2     any witness, it is a combination of all that.  It is a combination of the

 3     testimony and a combination of the -- the testimony in court and the

 4     statements or documents or exhibits that deal with that witness's

 5     testimony and their credibility or believability or non-believability,

 6     and I think it's a combination of all of that.  So I think excluding the

 7     statements, in some sense, excludes that parts of the picture that are

 8     necessary to complete the evidence of the witness, so I will give it some

 9     more thought and I'll talk about it with my colleagues, and maybe we can

10     come up with another idea

11             I think it is important with relation to any witness, not just

12     this witness, but this witness is a little different because of the

13     length of time that the witness testified, the amount of material that

14     existed for this witness, that in order to have a full and complete

15     picture, we do need those portions of the statements that the witness

16     gave as part of the evidence in the case.  I think that's important.

17             JUDGE ORIE:   Yes.  When I phrased my question, I expected a

18     fierce no, because you were the one who said for impeachment purposes

19     only.  And my question was about whether even if you prevented that

20     evidence for those purposes, whether the Chamber, nevertheless, could use

21     it for other purposes, that is, for the truth of the content.  That is

22     just for argument's sake.  Say that five statements were given in which

23     the witness says A; and then he comes in court or well, let's say he says

24     A, A1, A2, A3, and A4 and then he comes in court and testifies B.

25             Now, you could say I want these statements with A1, A2, A3, A4, I

Page 28519

 1     want to have them in evidence for impeachment purposes.  See how there

 2     are fluctuations in what he said, and it is certainly inconsistent with

 3     what he said in court.  Now, could the Chamber use those statements then

 4     to say that it is fully unexplainable why he says B in court; whereas A,

 5     in whatever variation, fits far better in the other evidence the Chamber

 6     has and, therefore, uses the A1, 2, 3, 4, versions for the truth of the A

 7     content.

 8             That's -- I expected, as a matter of fact, a fierce no.  Not to

 9     say that I'm whispering in your ear what you would have to answer, but I

10     don't know, since you gave an answer which shows quite some attention for

11     nuances, whether we really have to understand your answer as not

12     excluding that the Chamber would rely on the A part rather than on the B.

13             MR. KUZMANOVIC:  Well, I understand that -- Your Honours's

14     hypothetical, and in looking at what I said, I don't necessarily think

15     that I said that those particular statements whatever -- you know, either

16     the witness -- any witness says that on the stand as compared to what the

17     witness says in statements.  The Chamber is going to have to decide which

18     of those evidence is true, based on the credibility of the witness, so it

19     all is an issue of credibility.  And I think in order to assess and

20     evaluate that credibility, one needs to have A1 through A5, or however

21     many the Court cited, to be able to assess the credibility of the witness

22     and have that available, in light of what the witness has said on the

23     stand.

24             And whether the Chamber feels that those statements A1 through A4

25     are true or not, in light of the witness's testimony on the stand, that's

Page 28520

 1     something that the Chamber, obviously, is going to decide.  But we would

 2     like the opportunity to be able to cite to A1 through A4 if the witness's

 3     testimony is B.

 4             JUDGE ORIE:  Yes.  Let's leave it to that.  I invited you first

 5     to give your position and then sought verification of whether you would

 6     exclude, under all circumstances, that we would rely on the A versions as

 7     evidence for the truth of the content of the A versions, and I didn't

 8     hear clearly that, also for that purposes -- for those purposes, you

 9     would include the use of those statements.

10             Mr. Kehoe.

11             MR. KEHOE:  Mr. President, I do believe that the Chamber did

12     issue a decision on 30 March of this year concerning the guidance as to

13     how the Chamber would deal with unattested versions of 92 ter statements.

14             I think that's -- that decision speaks for itself, but the

15     conclusions drawn by the Chamber, under those circumstances, are now, I

16     guess, to this situation, and I think that given that's the guidance that

17     the Chamber has given, that we just consistently apply this across the

18     board.

19             JUDGE ORIE:  We're talking about analogous --

20             MR. KEHOE:  Analogous, not on all fours, in the sense that the

21     person was actually confronted with that and said this is not the case.

22     But, nevertheless, under Rule 92 ter, there has been no attestation

23     concerning these other items, so to the extent that is prior inconsistent

24     statement that simply what it is.

25             Now I understand there was a volume here, but I think that what

Page 28521

 1     we have done traditionally is that inconsistent statement has been shown

 2     to the witness to allow the witness to discuss it.  I understand that

 3     that wasn't done for the volume that was involved.  Nevertheless, I think

 4     the point still stands that is not substantive evidence and is simply

 5     goes to the credibility of what the witness said here before the Chamber.

 6             JUDGE ORIE:  So your position is slightly different from the

 7     nuanced position expressed by Mr. Kuzmanovic.

 8             MR. KEHOE:  Just a bit.

 9             JUDGE ORIE:  I just wasn't to know where we stand.

10             MR. KEHOE:  Yes.

11             JUDGE ORIE:  And, of course, when I earlier pointed at the flaws

12     if you have no 92 ter statement, which perhaps could not be obtained,

13     that the first part of that -- if that is -- whether that -- written

14     statement reflects what the witness said is, of course, very important in

15     this respect as well.  Now, there, and I didn't make any distinction

16     between recorded interviews or non-recorded -- I mean, audio-recorded

17     interviews or video recorded interviews, so we haven't dealt with all the

18     detailed aspects of the matter yet.  It certainly is a analogous

19     situation, but, already, in view of all these several items, which are

20     eight items, it might be that the position is not the same although has

21     some similar features.

22             Mr. Hedaraly, anything to be added?

23             MR. HEDARALY:  Just on the last question, Your Honour.   My

24     understanding of the jurisprudence of this Tribunal is that prior

25     inconsistent statement can be used as substantive evidence as well, and I

Page 28522

 1     think that's what the Chamber was exploring.  So I think that would be

 2     our position, would be consist with that.

 3             JUDGE ORIE:  Yes.  Now the Official Notes, Mr. Kuzmanovic, you

 4     said, that's a mistake.  I didn't hear you say that I want to correct

 5     that mistake, or -- I mean, if you --

 6             MR. KUZMANOVIC:  I do, Your Honour -- if -- I just asked my

 7     Case Manager to print out the list for me so I can see which is what

 8     document, and I'm more than happy to withdraw a request to admit the

 9     Official Notes.

10             JUDGE ORIE:  Which then raises the issue what the position of

11     Mr. Hedaraly would be in this respect.

12             MR. HEDARALY:  Your Honour, I think for the sake of completeness,

13     if we're going to have all the evidence of the witness and then decide

14     what he said when, I think for the sake of completeness, if the other

15     statements are admitted, we would ask that these ones be included as

16     well.

17             JUDGE ORIE:  Yes.  Then you would like just to change the D to

18     the P and give it a different number and that we'd have the full

19     overview.

20             At least we have explored the matter in quite some detail.  I do

21     understand now that then -- is this true for -- we have Official Notes,

22     interviews.  We have, I think it's D2034, up to and including D2037.

23             Is that what we're talking about, Mr. Kuzmanovic?

24             MR. KUZMANOVIC:  I don't have the list in front of me,

25     Your Honour, unfortunately.  But hopefully --

Page 28523

 1                           [Defence counsel confer]

 2             MR. KUZMANOVIC:  2034, if 2034 to 2307 [sic] are Official Notes

 3     then.

 4             JUDGE ORIE:  Well, it's Official Notes and interviews.

 5     That's ...

 6             If you perhaps take the tame to briefly look at the description,

 7     you can find them in e-court.  Then if you say starting with 203, then

 8     you get a list of ten and then you know exactly what you are talking

 9     about.

10             MR. HEDARALY:  I think D2034 and D2035 are the Official Notes.

11             JUDGE ORIE:   But 36 and 37 are still Croatian --

12             MR. HEDARALY:  But they're the judges -- the interviews with the

13     Croatian investigative judge, and then D2032 and D2033 are the suspect

14     interviews.  And D2030 and D2031 are the witness statements.

15             JUDGE ORIE:  Yes.  That fully corresponds with my list.

16             Now, are you withdrawing only the Official Notes, Mr. Kuzmanovic.

17             MR. KUZMANOVIC:  Yes, Your Honour.

18             JUDGE ORIE:  Only.  So, therefore, it would only be 2034 and

19     D2035.

20             MR. KUZMANOVIC:  That's correct.

21             JUDGE ORIE:  Official Notes.  But you would leave in the -- the

22     records of the statements given to the investigating judge.

23             MR. KUZMANOVIC:  Yes, Your Honour.

24             JUDGE ORIE:   And then I take it that now the Prosecution tenders

25     into evidence the documents, the Official Notes, which were, until now,

Page 28524

 1     D2034 and D2035.

 2             MR. HEDARALY:  Yes, Your Honour.

 3             JUDGE ORIE:  Yes.  Then, at least, the easiest part of it is to

 4     vacate the numbers.  D2034 and D2035 are vacated, and the same documents

 5     are now tendered by the Prosecution.

 6             Having dealt with that --

 7             MR. HEDARALY:  Can we just have numbers assigned so they don't

 8     fall off the list?

 9             JUDGE ORIE:  Yes.

10             Mr. Registrar, the numbers to be assigned to these two documents,

11     but now P numbers, would be?

12             THE REGISTRAR:  Your Honours, this document shall be assigned

13     exhibit numbers, P2726 and P2727.

14             JUDGE ORIE:  And they are marked for identification.

15             Mr. Kuzmanovic, I formally have to ask you whether you object to

16     admission.

17             You do, I take it.

18             MR. KUZMANOVIC:  Yes, Your Honour, under our previous -- for all

19     the reasons previously stated and written.

20             JUDGE ORIE:  Any of the other parties want to make submissions on

21     it, apart from what has been said already, which is then understood as

22     relevant for the admission of these two documents as well.

23             MR. KEHOE:  We, of course, note our objection on the

24     Official Notes as consistent with our position in the past.

25             MR. KAY:  Yes, Your Honour, goes without saying, the same for us.

Page 28525

 1             JUDGE ORIE:  Yes.  I move on to the last one on my MFI list which

 2     is D2038, which was a document which was tendered without an English

 3     translation.

 4             MR. KUZMANOVIC:  Your Honour, it's our document.  We're waiting

 5     for the translation.  It's been submitted and that's the only thing

 6     that's -- we're waiting for.  There was no objection that I noted from

 7     anyone.

 8             JUDGE ORIE:  No.  Then we have to wait for that translation.

 9             MR. HEDARALY:  Just -- I'm sorry, if -- if there's another item.

10     There was another document, or a translation that we will to link that

11     was not on the list that was read out by the Chamber and that's --

12             JUDGE ORIE:  I have -- if [Overlapping speakers] ...

13             MR. HEDARALY:  Sorry.

14             JUDGE ORIE:  I said what I would do is I would first go through

15     the pending issues list, what we did; then I would have a look at the MFI

16     list, which we did; and then we'll have a look what then remains at least

17     on the list which was submitted by the Gotovina Defence; and if then, at

18     the very end, anything remains, then it's the time to deal with that.

19             I noticed that items 2, 10, and 11 from your list, Mr. Kehoe,

20     have been dealt with.  And, further, that items 3, 7, 8, and 13 have been

21     dealt with through the MFI list.  Which means that what remains is, first

22     of all, item 1, which deals with P319 and P757.

23             The Gotovina Defence submits that Witness Morneau mistook P319

24     for a different exhibit, leading to an incorrect identification of that

25     exhibit.  And you submitted that the OTP has agreed on a joint submission

Page 28526

 1     to correct that error.

 2             MR. MISETIC:  That is correct, Mr. President.  We will make a

 3     joint submission.  It concerned the foundation of P319 and P757, which

 4     are, in fact, the same video.  In the submission, we will point out that

 5     P757 was tendered through Witness Berikoff, who provided the foundation

 6     as to who prepared the video, and, therefore, P319 was, in fact, not

 7     prepared by Witness Morneau or his subordinates.  And a filing will be

 8     prepared to that effect so that the Chambers has it on the record.

 9             JUDGE ORIE:  Yes, we wait for that filing.

10             Item 4, which remains is P2593.

11             The Gotovina Defence submitted it -- oh, submitted -- has

12     informed us that a document was incorrectly translated and that the OTP

13     has been contacted on this issue, on the 10th of March.

14             Could the Chamber hear what it resulted in?

15             MR. HEDARALY:  Yes, Your Honour we have the revised translation,

16     and we have sent it to the parties and everybody agrees.  It is ready to

17     be linked to the correct -- is a bit -- and if I may, just to save some

18     time, it's the same situation for item number 6.  Everything is ready.

19     It's just a matter of Mr. Registrar getting the permission to link the

20     correct translation.

21             JUDGE ORIE:  You said item 6.  The next item on my list was in

22     Mr. Kehoe's numbering of his list, item number 5, dealing with P25 -- let

23     me just see ...

24             MR. MISETIC:  Mr. President, we seem to be off one number.  P2593

25     is item 5 on the Gotovina housekeeping list, and P2602 is item 6.

Page 28527

 1             JUDGE ORIE:   Yes.  And ... so we are talking about P2593 and we

 2     are talking P2602, both translation issues.

 3             Have both -- for both exhibits, has the translation been revised?

 4     Could you give the numbers so that Mr. Registrar -- or is he already

 5     aware of the revised translations to replace the earlier ones?

 6             MR. HEDARALY:  I think he is aware, but if he is not, we can look

 7     for the numbers.

 8             JUDGE ORIE:  P2593 would be ...

 9             Could I ask, Mr. Registrar, have you received a revised

10     translation of P2593?

11             THE REGISTRAR:  I do have a revised translation.

12             JUDGE ORIE:  Yes, in the full confidence that that is the

13     translation that the parties agreed upon, that translation will replace

14     the one who is now attached to that document.

15             Mr. Registrar, have you received a revised translation for P2602?

16             THE REGISTRAR:  Yes, Your Honours, I do have it.

17             JUDGE ORIE:  Then, for the same reason, this revised translation

18     should replace the one which is now in e-court.

19             Mr. Kehoe, we've dealt with D389 which was on your list as

20     item 9.

21             What then remains is item 12.

22             D1973.  The date of the English translation should read 28th of

23     August, 1995.  That's the one and only change you suggest.

24             MR. MISETIC:  That's correct.

25             JUDGE ORIE:  And you have sent it to the Registrar in an e-mail

Page 28528

 1     on the 17th of March.

 2             MR. MISETIC:  That's correct Mr. President.  It has -- the doc ID

 3     is 1D72-4228, and it will be replaced by PDF.

 4             JUDGE ORIE:  It will be replaced by PDF.  I don't know whether I

 5     fully understand what you mean.  I know what a PDF file is but ...

 6                           [Trial Chamber and Legal Officer confer]

 7             JUDGE ORIE:  So it will replace by the document which you sent in

 8     PDF format.

 9             MR. MISETIC:  That's correct, Mr. President.

10             JUDGE ORIE:  Thank you.  I have nothing more on my list.  It's

11     10.30.  Are there any other urgent matters which we have to deal with at

12     this moment?

13             If not, I thank the parties for their patience and their accuracy

14     in the matters we have to --

15                           [Trial Chamber and Registrar confer]

16             JUDGE ORIE:  Before we adjourn [French on English channel] ... I

17     always love to hear some French [French on English channel] ... Yes,

18     you're immediately awarding me again for having expressed this feeling.

19             We're now back on the English channel.  When I earlier referred

20     to the Cermak Defence and OTP joint filing, I mentioned two.  The first

21     one, 14th of January, 2010; the second one 14th of April, 2010.  I want

22     to further precise that the 14th of April was actually filed on the 15th

23     of April, 2010.

24             Nothing else.  Yes, I still owe you, Mr. Kehoe, one piece of

25     information.  I said we would deal with your request, whether you would

Page 28529

 1     receive a decision by the 30th of April.  You'll hear further on that

 2     matter this week.

 3             MR. KEHOE:  Yes, sir.

 4             JUDGE ORIE:  Not to say that you received the decisions this

 5     week, but you will hear further on the matter --

 6             MR. KEHOE:  I understand, sir.

 7             JUDGE ORIE:  -- this week.

 8             Then we will -- let me see.

 9             We will adjourn for the day, and we'll --

10             MR. KAY:  Before we do, Your Honour, I must apologise.  It was

11     just so it was clear to us, the parties, what the likely timetable may

12     be.  We were scheduled for three dates this week, and a number of us have

13     several sets of travel arrangements in place for any given day.  And

14     it -- it's of interest to know what the timetable would be if this

15     witness does arrive in the jurisdiction.

16             JUDGE ORIE:  We expect the witness to arrive today, as matters

17     stand now, and no one has yet changed that information.  Which means that

18     we would hear the testimony of that witness, as far as matters stand

19     now -- let me just check one thing.

20                           [Trial Chamber and Registrar confer]

21             JUDGE ORIE:  Well, therefore, we expect the witness to -- to

22     start giving testimony tomorrow morning, and we have then additionally

23     booked Friday morning, and the experience with the other Chamber

24     witnesses is such that we would expect to finish his testimony on

25     Friday -- not later than Friday, if not tomorrow, which means that we

Page 28530

 1     would not -- and then, of course, we have the -- nothing else changed but

 2     we don't have any hearings early next week.

 3             MR. KAY:  Yes.  So, at the moment, it's booked for tomorrow

 4     morning, not -- not a second session in the afternoon.

 5             JUDGE ORIE:  No.

 6             MR. KAY:  Which may be advisable --

 7             JUDGE ORIE:  If the parties -- there are some uncertainties in

 8     the case which, at least, two of the Judge would hear in the afternoon.

 9     Because we were scheduled -- the Stanisic/Simatovic case was scheduled

10     for this afternoon but will not sit.  We are -- there are similar

11     problems arise, and we do not know yet as to whether we would hear any

12     testimony in Stanisic/Simatovic, whether the Chamber would hear any

13     testimony Thursday afternoon.  If not, there might be an option to move

14     to the Thursday afternoon.  At the same time, for a witness to testify

15     during ten hours a day, it's -- it is not only a burden on Chamber and

16     parties but also a witness.  Therefore, I would say it might depend, if

17     we would have one hour to go tomorrow morning, then if we would not sit

18     in the other case in the afternoon, then we -- we might consider whether

19     that gives a solution, but as scheduling stands now, it would be on

20     Friday morning.  And if the parties have any preference, don't hesitate

21     to inform the Chamber about it, so that we can consider, to the extent

22     possible, any preferences.  I can imagine that if we finish the witness

23     on Thursday, that you might already start queueing on Schiphol airport on

24     Friday morning, rather than Friday afternoon trying to get a plane to

25     wherever you want to go.  But any preferences, we'll carefully consider

Page 28531

 1     them and, to the extent possible, we'll take them into account.

 2             MR. KAY:  That's been very helpful, Your Honour.

 3             JUDGE ORIE:  If there is no other matter, we adjourn for the day

 4     and we resume tomorrow, Thursday, 22nd of April, 9.00 in the morning, and

 5     the parties are invited to verify this afternoon whether the witness has

 6     arrived; because, if not, then the situation will be different.

 7                            --- Whereupon the hearing adjourned at 10.38 a.m.,

 8                           to be reconvened on Thursday, the 22nd day of

 9                           April, 2010, at 9.00 a.m.