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.
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
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
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
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
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.
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
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
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
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.
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]
11 Pages 28500-28501 redacted. Private session.
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
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
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
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
1 on quite a number of exhibits for which now the translations have been
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
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
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
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.
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.
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.
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
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.
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
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
1 were put to him to deal with. That is one way of doing it.
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.
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
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
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
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
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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 --
1 [Defence counsel confer]
2 MR. KUZMANOVIC: 2034, if 2034 to 2307 [sic] are Official Notes
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
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
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,
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
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.
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
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
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
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.
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
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
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
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
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.