1 Friday, 11 June 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.
9 This is case number IT-06-90-T, the Prosecutor versus
10 Ante Gotovina et al. Thank you.
11 JUDGE ORIE: Thank you, Mr. Registrar.
12 I think I said, "Madam Registrar," but -- or -- I didn't say -- I
13 don't remember, but, at least, thank you, Mr. Registrar.
14 I first establish that the accused are not in the courtroom. I
15 remember that yesterday one of the last issues we briefly discussed was
16 their absence or presence. May I take it that each of the three accused
17 has used the opportunity we gave yesterday to be absent today and to
18 proceed, that they agree in us proceeding in their absence?
19 MR. KAY: Yes, Your Honour, on behalf of Cermak.
20 MR. KEHOE: Yes, Your Honour on behalf of General Gotovina.
21 MR. MIKULICIC: Correct, Your Honour, on behalf of Mr. Markac.
22 JUDGE ORIE: Thank you. Then we will deal with quite a number of
23 housekeeping sessions.
24 The first thing I'd like to do is to deliver a decision. It's
25 the Chamber's decision on the admission into evidence of P2726, P2727,
1 D2030 through D2033, D2036, and D2037, documents which were tendered
2 through Witness Sacic.
3 On the 26th of March, 2010, the Markac Defence tendered documents
4 D2030 through D2033, D2036, and D2037 to challenge the credibility of
5 Witness Sacic. This can be found on transcript pages 28041 through
7 On the 21st of April, 2010, the Prosecution tendered P2726 and
8 P2727 in order to have a complete record, if the Markac Defence documents
9 are admitted. This can be found at transcript pages 28522 through 28524.
10 P2726, P2727, D2030 through D2033, D2036, and D2037 are OTP
11 statements, parts of OTP suspect interviews, as well as Croatian
12 Official Notes and interviews of Witness Sacic.
13 The Cermak Defence submitted that the only portions of the
14 tendered documents that should be admitted into evidence are those that
15 were put to the witness and that they should only be used for impeachment
17 The Gotovina Defence also submitted that these statements should
18 only be used for impeachment purposes.
19 All three Defence teams further objected to the admission into
20 evidence of P2726 and P2727.
21 The Prosecution raised no objection to the admission into
22 evidence of the Defence documents and further submitted that all
23 statements being tendered could be used both for impeachment purposes and
24 for the truth of their contents. All of this can be found on transcript
25 pages 28511, 28513, and 28521 through P28524.
1 The Markac Defence tendered D2030 through D2033, D2036, and D2037
2 to challenge the credibility of Witness Sacic. The Chamber recalls that
3 the parties were informed on the 24th of February 2010 that, in relation
4 to Chamber witnesses, they would be able to - and I quote:
5 "Read into the record portions of previous statements alleged to
6 be inconsistent with any evidence given by the witness during his
7 testimony in order to challenge the witness's credibility."
8 And this can be found at transcript page 27120.
9 In this instance, the Markac Defence did not follow this
10 procedure. In order to create a clear and complete record of the
11 proceedings, the Chamber will, rather than asking the Markac Defence at
12 this stage to read the relevant portions into the record, instead allow
13 it to file those portions of the witness's previous statements that were
14 put to him in court. There is then no need to admit the documents into
16 Accordingly, the Chamber denies the admission into evidence of
17 D2030 through D2033, D2036, and D2037. Considering that the Prosecution
18 conditionally tendered P2726 and P2727 on the admission into evidence of
19 the Defence documents, their admission into evidence is also denied.
20 And this concludes the Chamber's decision.
21 The second item deals with a document marked for identification.
22 D2038, which is the decision for appointment of Zeljko Sacic to
23 assistant minister for the crime police, was tendered by the
24 Markac Defence. An English translation was missing. I do understand
25 that it has now been uploaded.
1 Mr. Registrar, would you link the uploaded English translation to
2 D2038 which was, until now, marked for identification. And since there
3 is an English translation now, nothing opposes admission into evidence,
4 unless any of the parties would have any problems with the translation.
5 D2038, in the absence of any objections, is admitted into
7 A few - and that's the next item on my agenda - a few
8 translations were recently revised. I give you the numbers. It is P510,
9 P577, P2536, D495, D1476, P2455, P2343, P2386, P2002, P2732, and D787.
10 I note that Mr. Registrar informed me that he had, although a
11 revised translation is there, that he has not yet received P2536 and
13 Mr. Registrar, could you confirm that you did not receive
14 these two.
15 THE REGISTRAR: Your Honour, hereby I confirm. Thank you.
16 JUDGE ORIE: Mr. Hedaraly.
17 MR. HEDARALY: Your Honour, there was -- P2536, if the Chamber
18 will recall, were two -- was the document where two versions, the
19 originals, were found on the Internet, and those were tendered. After
20 some discussion in court, what -- what we had done is we had sent both of
21 those to CLSS and the -- and requested a translation of one into the
22 other at which case -- in which case CLSS told us they will consider the
23 English one to be the translation and prepare the B/C/S translation of
24 the English -- what they considered English original. Because they had
25 two originals in front of them. We sent it to the Defence, and I think
1 there was some discussion, and Mr. Misetic had an issue with considering
2 the English as the original, so his proposal was to leave the two
3 originals in evidence to which we have no problem. But it was after the
4 Court's instruction that we had sent the matter to CLSS, and that's how
5 they had proceeded.
6 That's the issue with P2536.
7 JUDGE ORIE: So for one of the versions we have no translation?
8 MR. MISETIC: Yes, Mr. President --
9 MR. HEDARALY: That's correct. For the B/C/S version that was
10 online, there is no English translation of that one.
11 MR. MISETIC: That's correct, Mr. President. The issue is - and
12 Mr. Hedaraly and I spoke about it, and it quite honestly has fallen off
13 my agenda, and that's why it hasn't been addressed - we have a actual
14 video of the speech that President Tudjman gave, and we were supposed to
15 give it to the Prosecution. And I quite simply forgot to give it to
16 Mr. Hedaraly.
17 JUDGE ORIE: Yes.
18 MR. MISETIC: And in that way is how we were going do resolve
19 what the most accurate English translation would be.
20 So I will pledge to the Court that I will get that to
21 Mr. Hedaraly hopefully by the close of business today, and however much
22 time they need to review it, and then we can try to resolve it
24 JUDGE ORIE: Yes. What from what you tell us, Mr. Misetic, but
25 please correct me if I'm wrong, Mr. Hedaraly, it seems that it is a very
1 technical matter for which the parties should be able to find a solution,
2 whatever that solution would be.
3 Would you agree with that?
4 MR. HEDARALY: I think so, Your Honour.
5 JUDGE ORIE: Then we'll leave -- we were talking about P2536;
6 we'll leave that one still open for a new translation or a joint
7 submitted translation to be attached to that document.
8 Now, the other one which Mr. Registrar told us he had -- or is
9 P2732 is a different ...
10 MR. HEDARALY: That's -- that's the official interview note of
11 Mr. Bilobrk. That's the one where we sent the aide-memoire to the court.
12 And there was that agreed issue to be correct. And that just hasn't been
13 done yet, but we should be receiving it, hopefully, later today --
14 JUDGE ORIE: Yes.
15 MR. HEDARALY: -- with the correction that both parties had
16 agreed to.
17 JUDGE ORIE: Yes. That's the correction where it's mainly the --
18 [Overlapping speakers] ...
19 MR. HEDARALY: [Overlapping speakers] ... the tense --
20 JUDGE ORIE: -- whether it's "should" or "had."
21 MR. HEDARALY: Something like that, yes.
22 JUDGE ORIE: Yes. The problem, of course, is that if it's not
23 there, it's difficult to admit it -- well, no, it's admitted into
24 evidence; it's just a matter of uploading.
25 Mr. Registrar, you are hereby granted leave to replace P2732 by a
1 new translation where the one and only difference is the difference which
2 was indicated as agreed upon by the parties in the aide-memoire on the
3 ostavita/postavita matter. That is --
4 Then, finally, I think that D787, although the translation has
5 been revised, is there still any discussion on that one?
6 MR. HEDARALY: Your Honour, there are a few -- a few of these
7 exhibits that are still under discussion because obviously, as the court
8 can imagine, some of these come up as we review the evidence. So these
9 have been sent to the Cermak Defence yesterday. We can go into the
10 details today if we need to, but if we can have a procedure in place for
11 this one and other ones where other translation matters may occur, and
12 then we can discuss with the parties and then submit the matter to
13 Mr. Registrar. And then I don't know what's the best way of moving
14 forward for these issues. I don't think it's worth discussing the
15 details of the translation, discussions we're having in court --
16 JUDGE ORIE: I think, as a matter of fact, what we are mainly
17 talking about is replacing translations by revised translations.
18 I will deal with that at a later stage.
19 Now, from all of the exhibits I've mentioned, P510 is admitted
20 into evidence; P577 -- no, I'm -- I'm making a mistake. It's all
21 admitted into evidence already.
22 The revised translation of P510 can replace the existing
23 translation. The revised translation of P577 can replace the existing
24 translation. For P2536, we wait until we have now the full information.
25 Mr. Registrar may further replace the existing translations of the
1 following documents by the revised and uploaded translations: D495,
2 D1476, P2455, P2343, P2386, P2002. I think I dealt already with P2732.
3 And for D787, we wait until there's an agreed revised translation.
4 MR. HEDARALY: Your Honour, I would ask the same thing for P2343,
5 and P2386. We have been in discussion with the Cermak Defence for P2386;
6 I think we're very close to agreement. And for P2343, we have noticed
7 additional changes that needed to be made, and we sent those to the
8 Defence teams yesterday. So if we can also wait on those to have
9 confirmation on whether those --
10 JUDGE ORIE: Yes.
11 MR. HEDARALY: -- those are as well confirmed. Then we can have
12 those linked.
13 JUDGE ORIE: So the leave granted to replace the translation of
14 P2343 and P2386 is withdrawn. And we are awaiting the final green light
15 by the parties for replacement of these translations by the new versions
16 on which the parties would then have agreed.
17 MR. MISETIC: Mr. President, with respect with P2343, we have
18 already had a chance to review it last night and we don't have any
19 objection to it.
20 JUDGE ORIE: But we have not heard from the other parties yet.
21 Once all the parties have looked it, could it be presented to the Chamber
22 in a clear way. I'm -- I'll come back later to that because even new
23 matters may arise in view of translation. It can be that one line or
24 another line which has not caught immense attention, nevertheless, would
25 suffer on some translation flaws.
1 MR. KAY: Your Honour, we have no objection to 2343; just
3 MR. MIKULICIC: The same with Markac Defence, Your Honour.
4 JUDGE ORIE: Then P2343, which started today as being translated
5 by an old translation, then that old translation leave was granted to
6 replace it by a new translation, which was subsequently withdrawn, and
7 now the final word is that Mr. Registrar is given permission to replace
8 the revised translation of P2343 -- no, now I'm making mistakes. To
9 replace the existing translation of P2343 with the revised translation.
10 MR. HEDARALY: Just to clarify, with the newest revised
12 JUDGE ORIE: Yes. With the newest revised translation uploaded.
13 And no party could leave the premises of this Tribunal today unless they
14 have verified in every single -- on every single letter whether what is
15 now uploaded is the newest, freshest, revised translation.
16 I quickly move on to another subject.
17 My next item deals with P2678, the minutes of the 277th closed
18 government session, 5th of October, 1995.
19 The parties were to provide a complete translation of this
20 government session to replace the current translation of P2678. I do
21 understand that a full translation covering the whole of the document is
22 now uploaded.
23 Mr. Registrar, did you receive such a new, complete, 100 percent
24 complete, newest translation of P2678?
25 THE REGISTRAR: I confirm, Your Honour.
1 JUDGE ORIE: Then that new translation may replace - and you're
2 instructed to replace it - may replace the old translation.
3 The question arises whether the -- the two documents which
4 contain elements of P2678, whether they should remain in evidence,
5 because P2678 is the complete version of what is found in part in -- in
6 D214 and D215.
7 Now, the Chamber prefers to have that in evidence because
8 reference is made to those documents and otherwise one would easily be
9 lost. The only question which then arises, if there's any need to make
10 further changes to that or to the translations. The parties are invited
11 to consider that and to inform the Chamber if there are any wishes there.
12 For reference purposes, D214 and D215 are important. However,
13 for access to the complete record and the translation of it, of the
14 closed government session, P2678 will be guiding.
15 MR. HEDARALY: Your Honour, we did have a discussion with the
16 Markac Defence, and what we had suggested is to have, since the originals
17 in D214 and D215 are there, to simply have the complete translation of
18 that portion linked to D214 and to D215 so that everyone can just have
19 the complete access to the record. And then we have P2678 as the full
20 version. So whatever the witness may had referred to in examination, no
21 one has to go chase around other exhibits.
22 But I don't think that we had discussed it, and there seemed to
23 be agreement on that, just to let the Court know that we had discussed
24 the issue previously.
25 JUDGE ORIE: Now, forgive me for not having a clear recollection
1 on what exactly was left out and what was translated and what was not
2 translated. May I take it that where the parties agree that they would
3 upload exactly those portions of the translation of P2678 that would
4 match what we find in D214, and the same for D215, and that Mr. Registrar
5 is granted leave to replace the existing translations by these new
6 translations? Well, they're not actually new translations, but it's just
7 more or less transferring them to -- so that D214 and D215 have the
8 translations to the extent that these are portions of P2678.
9 Yes, I said earlier that I would come back to any -- how to deal
10 with these kind of translation issues for the near future. Because we --
11 we're considering that they'll -- there will be no more court hearings,
12 apart from hearings on closing argument. Therefore, instructions to link
13 revised translations to exhibits in e-court will be given informally. As
14 in the past, the parties should approach the Registry, copying Chamber
15 staff, once they have agreed a revised translation.
16 The Chamber will then consider the revised translation and,
17 accordingly, instruct the Registrar informally -- again, copying the
18 parties. The Registry will then, just prior to the issuing of the
19 Judgement, file on the record a list of exhibits for which translation
20 replacement instructions were given informally. So we deal with the
21 matter all in a rather informal way. And at the very end we have a list
22 of what translations were replaced, and that will be a formal document.
23 This is how the Chamber intends to proceed.
24 Any comments, questions, or suggestions?
25 If not, I would like to move on to the next item on my agenda.
1 D2041, which is a map of the Ramljane area which was tendered
2 through witness Balunovic. Inadvertently, this document was not admitted
3 into evidence, whereas there seemed to be no objections of any kind.
4 Therefore, D2041 is admitted into evidence.
5 The next item concerns D986.
6 On the 1st of December in -- let me just check that.
7 [Trial Chamber and Legal Officer confer]
8 JUDGE ORIE: On the 1st of December, 2008, D986 was admitted into
9 evidence, but it had not yet been released in e-court, which only
10 happened later. I --
11 [Trial Chamber and Registrar confer]
12 JUDGE ORIE: It was at the time not released in e-court. That
13 happened only at a later stage. And I just simple put this on the record
14 for full transparency. The Registry has informed the parties of this by
15 e-mail of the 20th of May, 2010, and no objections were raised. The
16 relevant documents, which is 1D63-0218, should be linked to D986 in
17 e-court, and the Registrar is instructed to do so.
18 Then we move on. And I'll deliver a decision -- or, rather, the
19 reasons for a decision that are the reasons for the decision on
20 protective measures for Witness CW-4.
21 On the 15th of April, 2010, Witness CW-4 requested to testify in
22 closed session out of fear for the safety of his family in Croatia
23 The Prosecution, the Gotovina Defence, and the Markac Defence
24 submitted that protective measures could be granted under the Rules. The
25 Cermak Defence initially objected to the request on the ground that the
1 witness had failed to provide the basis of his fear for the safety of his
2 family. After the parties' submissions, Witness CW-4 testified that his
3 family had received threatening phone calls, after which the
4 Cermak Defence withdrew its objection.
5 The Chamber then granted the protective measures of a pseudonym
6 and testimony in closed session. This can all be found on transcript
7 pages 28174 through 28187, and 28339.
8 The Chamber has previously held that the party seeking protective
9 measures for a witness must demonstrate an objectively grounded risk to
10 the security or welfare of the witness or the witness's family, should it
11 become known that the witness has given evidence before the Tribunal.
12 This standard can be satisfied by showing, for example, that a threat was
13 made against the witness or the witness's family.
14 Witness CW-4 testified that his family had received threatening
15 phone calls and that he was afraid they might be harmed by someone who
16 did not find his statements before the Tribunal to be - and I quote -
17 "suitable." Having considered the parties' submissions and on the basis
18 of the witness's testimony, the Chamber found that the witness had
19 demonstrated an objectively grounded risk to the security or welfare of
20 his family, should it become shown that he had given evidence before the
22 The Chamber further considered that, in light of the nature of
23 the anticipated evidence of the witness, the only effective way to
24 protect his identity was to hear his testimony in closed session.
25 Accordingly, the Chamber decided to grant the protective measures of a
1 pseudonym and testimony in closed session.
2 And this concludes the Chamber's reasons for granting protective
3 measures to Witness CW-4.
4 I would now like to deliver a decision on the Gotovina Defence
5 request for clarification.
6 The Chamber hereby issues its decision on the Gotovina Defence's
7 request for clarification of the Chamber's correspondence with the
8 Republic of Croatia
9 The correspondence relates to the Prosecution's application for
10 an order, pursuant to Rule 54 bis of the Tribunal's Rules of Procedure
11 and Evidence, filed on the 13th of June, 2008, and the Chamber's
12 subsequent order of the 16th of September, 2008.
13 As the parties are aware, the Prosecution's Rule 54 bis
14 application is currently being further considered by the Chamber. A
15 decision will be rendered in due course and is expected to be issued
16 before the summer recess.
17 On the 8th of September, the Chamber received a letter from a
18 representative of the Republic of Croatia
19 when a decision on the Prosecution's Rule 54 bis application would be
20 rendered or when a hearing with regard to this matter would be scheduled.
21 On the 11th of September 2009, the acting senior Legal Officer of
22 this Chamber responded that the Chamber was in the process of reviewing
23 and considering submissions and reports provided by the Republic of
25 when this review would be completed.
1 As the parties recall, hearings and meetings on the matter were
2 subsequently scheduled and took place in December 2009, as well as in
3 January and February 2010. The acting senior Legal Officer added, in a
4 correspondence, that until a new order would be issued, the Chamber's
5 order of the 16th September 2008 remained in force.
6 On the 13th of October, 2009, the Gotovina Defence requested
7 clarification of the correspondence of 11th of September, 2009, and of
8 the 16th of September, 2008, order. Specifically, the Gotovina Defence
9 inquired whether and to what extent the order was still in force and
10 pursuant to which Rule it had been issued.
11 On the 27th of October, 2009, the Prosecution responded to the
12 request, arguing, firstly, that the Gotovina Defence had no standing to
13 make this request. It further argued that the correspondence in question
14 merely reiterated what was obvious from the face of the order and that
15 the request should therefore be denied.
16 On the 29th of October, 2009, the Gotovina Defence requested
17 leave to reply, which was not granted.
18 With regard to standing, the Chamber has consistently invited all
19 parties to make submissions and to attend hearings with regard to the
20 Prosecution's Rule 54 bis application. In line with this, the Chamber
21 considers that the Gotovina Defence indeed had standing to make the
23 The 16th of September, 2008, order granted, in part, a request by
24 the Republic of Croatia
25 the whereabouts of certain documents that are the subject of the
1 Prosecution's Rule 54 bis application. The decision to grant the request
2 in part and the order to intensify and broaden the investigation and
3 report the results of the investigation to the Chamber and the
4 Prosecution were issued pursuant to Rule 54. This is indicated in the
5 16th of September, 2008, order itself. The order remains in force in its
6 entirety until it is amended or replaced by another order or decision
7 issued by the Chamber.
8 The Chamber did not set a time-limit on the validity of the
9 order, although it did set a deadline for the Republic of Croatia
10 report to the Prosecution and the Chamber.
11 The Chamber notes that Croatia
12 that, in its view, it has complied with the order; while the Prosecution
13 has made indications that, in its view, Croatia has not done so. The
14 Chamber has understood these indications only as submissions by the
15 Prosecution and by the Republic of Croatia
16 decision of whether or when the order has been complied with remains
17 solely within the competence of the Chamber.
18 And this concludes the Chamber's decision.
19 The next item I would like to deal with is the Gotovina Defence
20 bar table motion.
21 A written decision will follow, but I hereby already announce
22 that items 1 to 13 of Appendix A of Gotovina's 19th of April, 2010, bar
23 table submission are admitted into evidence.
24 The Chamber has also decided not to admit the complete
25 investigative file which relates to item 8. This was proposed by the
1 Prosecution, and it seems that the fact that no other investigation,
2 apart from the one submitted, was performed until 2006 does not seem to
3 be in dispute. But I'm looking at the parties.
4 Mr. Hedaraly, you know what we are talking about. It's the one
5 document which indicates how investigations were initiated but that it
6 only then in 2006 got a follow-up.
7 Both Gotovina Defence and Prosecution, therefore, agree on that
8 no further investigative activity had been undertaken until 2006. That
9 apparently was the issue. And then it started. And then it's -- we have
10 the investigative file which you would like to -- to present. But the
11 Chamber first focuses on what really, at that time, was the issue, is
12 what investigative activity had been developed and that the Prosecution
13 wanted to stress, in relation to item 8, Nikola Subota, that whatever may
14 have happened at the time it then only received a follow-up in 2006.
15 The parties agree on that.
16 Now, in order to -- to accept this stipulation, it's, until now,
17 a stipulation between the Gotovina Defence and the Prosecution. Do the
18 other parties want to join in this stipulation that has not such direct
19 effect, I think, on their cases, but ...
20 If so, it will be a stipulation between all parties. Otherwise,
21 it will be a stipulation only between the Gotovina Defence --
22 MR. KAY: I think it's more appropriate between the other two,
23 Your Honour. It's something with which we cannot satisfy ourselves on.
24 JUDGE ORIE: Yes, but I rather hear that from you.
25 MR. KAY: Yes.
1 JUDGE ORIE: Than either to suggest that --
2 MR. KAY: Yes.
3 JUDGE ORIE: -- you would not disagree. You say this is a
4 stipulation which you have not verified and where you take no position.
5 MR. KAY: Yes.
6 JUDGE ORIE: You're not a party to that stipulation.
7 MR. KAY: Exactly, Your Honour.
8 JUDGE ORIE: And the same is true for --
9 MR. MIKULICIC: Yes, the same applies to Markac Defence as well.
10 JUDGE ORIE: Yes. Then may I take it the way in which I
11 formulated what you stipulate upon, that is, that since the investigative
12 activity as found in item 8 on the Gotovina Defence bar table motion took
13 place, that no follow-up was there until 2006; would that sufficiently
14 formulate the stipulation?
15 I see Mr. Hedaraly nodding yes.
16 MR. MISETIC: That's fine, Mr. President. I would -- I don't
17 think it's in dispute either that on the 8th of August an investigative
18 judge was on the scene and did an on-site investigation and that after
19 that, until 2006, there was no further investigative steps.
20 JUDGE ORIE: Mr. Hedaraly.
21 MR. HEDARALY: Your Honour, the way you have described it, and I
22 think what -- if Mr. Misetic is referring to what item 8 says, and I
23 don't remember the exact details, but that's why the -- the way that
24 Mr. President has formulated it is satisfactory for us.
25 JUDGE ORIE: Yes. And you do not object to what we find in
1 item 8 at this moment. You're not challenging the truth of the content
2 of that document.
3 MR. HEDARALY: That's correct.
4 JUDGE ORIE: That's now on the record.
5 The next item I would like to deal with is the decision on the
6 Cermak Defence motion to admit into evidence regulations on procedure of
7 the Public Security Service.
8 I will refer to the regulations on procedures of the
9 Public Security Service hereafter as the regulations.
10 On the 26th of March, 2010, the Chamber sought the assistance of
11 the parties by asking whether the regulations mentioned by Witness Sacic
12 could be produced. This can be found at transcript page 27990.
13 On the 20th of April, 2010, the Cermak Defence requested the
14 Chamber to admit the regulations into evidence. The Prosecution
15 responded on the 4th of May, 2010, stating that it did not object to the
16 admission of the regulations and making further remarks about their
18 According to Rule 89(C) of the Tribunal's Rules of Procedure and
19 Evidence, a Chamber may admit any evidence which it deems relevant and of
20 probative value.
21 The regulations expand on the procedure to be followed when
22 performing an on-site investigation with or without an investigating
23 judge. They furnish further detail on the provisions of Article 145(2)
24 of the Croatian Law on Criminal Procedure and outline the required
25 conduct and obligations of the civilian police in the aftermath of a
1 crime and upon learning of a crime. As the regulations were in force in
3 additional legislative framework and information which is both reliable
4 and relevant to the Chamber's ability to assess the evidence of numerous
5 witnesses and better understand the evidence concerning events that
6 transpired. In light of the foregoing considerations, the Chamber finds
7 the regulations to be both relevant and of probative value and admits
8 them into evidence.
9 Finally, considering the absence of objections to admission into
10 evidence and that the Chamber itself sought production of the
11 regulations, the Chamber exceptionally allows their admission into
12 evidence at this stage of the proceedings, namely, after the closure of
13 the Cermak Defence's case in-chief.
14 And this concludes the Chamber's ruling on the matter.
15 The regulations have not been assigned an exhibit number yet.
16 Mr. Registrar, could you ...
17 THE REGISTRAR: Your Honours, this document shall be assigned
18 Exhibit D2146. Thank you.
19 JUDGE ORIE: And it was D2146, which I just admitted -- which the
20 Chamber just admitted into evidence.
21 The next item is the Markac Defence bar table submission in
22 relation to Witness Repinc.
23 A spreadsheet of documents was filed on the 9th of June of 2010.
24 There are a total of 92 documents, all of which are referenced in
25 Witness Repinc's expert report, which is D1932. The Prosecution does not
1 object to 89 of the documents. First of all --
2 Mr. Hedaraly.
3 MR. HEDARALY: I'm sorry, Your Honour. If it may assist the
4 Court, we've discussed the matter with Mr. Mikulicic, and we will
5 withdraw our objection to the three documents to which we had initially
6 objected. So I thought I would make that clear before the Chamber moves
7 on with its decision, if it may assist to keep matters short.
8 JUDGE ORIE: Yes.
9 One of the items was about the -- and that was number 56 on the
10 list. I'll not deal with the -- with numbers 65 and 44, which were the
11 two other ones which were subject of conversations.
12 There was an issue of provenance on 56, which the Chamber is
13 interested to hear about. We -- I think the, until now, the explanation
14 was that it was received from Mr. Separovic. It is, from what I
15 remember, they say a document which relies on a handwritten report sent
16 by Mr. Sacic, I think, it's 21st or 21st of August. The only thing we
17 knew, especially in relation to the handwritten document, is that it was
18 received from Mr. Separovic. I don't have to explain to the parties the
19 litigation that has taken place in relation to Mr. Separovic, which was
20 related to this case.
21 The Chamber would like to hear whether there is any further
22 information as far as the provenance of document 56 is concerned.
23 MR. MIKULICIC: No, Your Honour. We have no further information.
24 JUDGE ORIE: Then the Chamber will consider -- we have no
25 problems with 65 and 44 on the list. But this one, number 56,
1 Markac Defence bar table submission, is a report on the completion of
2 tasks for the 21st of August, 1995, a handwritten document with signature
3 of Mr. Zeljko Sacic, and later transcribed and sent to the, I think,
4 General Staff of the HV.
5 The Chamber will consider, further consider, whether it admits
6 this document into evidence. But ...
7 [Trial Chamber and Legal Officer confer]
8 JUDGE ORIE: But with the exception of number 56 on that list, on
9 the bar table submission in relation to Witness Repinc, the Chamber
10 admits the remaining 91 documents into evidence. And we ask the
11 Registrar to announce a range of numbers. Most likely, later this
12 morning, the Chamber will issue its decision on number 56. Perhaps after
13 a very short break.
14 Yes, Mr. Registrar.
15 THE REGISTRAR: Your Honours, exhibit numbers assigned to
16 Markac Defence bar table submission will be in the exhibit range from
17 D2054 throughout and including D2145. D2109 will remain MFI until the
18 Chamber's decision is issued. Thank you.
19 JUDGE ORIE: Thank you, Mr. Registrar.
20 The next item on my agenda deals with P1278.
21 I do understand that the Prosecution would like to amend the
22 reference to the document's ID under P1278 in e-court.
23 Mr. Hedaraly, is that correctly understood?
24 MR. HEDARALY: That's correct, Your Honour. As stated in the
25 surrogate sheet, it should V000-0990.
1 JUDGE ORIE: Yes. And it does not change in any way what is in
3 Any objections?
4 If not, Mr. Registrar, you are hereby instructed to replace the
5 document ID reference of P1278 with now the correct one.
6 [Trial Chamber and Registrar confer]
7 JUDGE ORIE: The next item is a bar table submission by the
8 Cermak Defence. It's the -- it is a spreadsheet which the Chamber
9 received yesterday, but there are no comments from the OTP on it. And
10 spreadsheets related to bar table submissions should be filed once the
11 OTP has given its comment on it. But I already -- the Chamber would
12 already like to know from the OTP whether there are any objections
13 against admission, apart from what your comments or what your entries on
14 the relevant column would be.
15 MR. HEDARALY: We will object, Your Honour. If -- if Your Honour
16 wants further submissions on what the objections are, we can be heard, or
17 we can provide them in the comments section or in a brief filing.
18 [Trial Chamber and Legal Officer confer]
19 JUDGE ORIE: Mr. Hedaraly, the Chamber would -- would like to
20 hear your submissions on the matter. And, of course, sometimes
21 objections against admissions take the form of challenging the relevance,
22 which is, of course, one of the requirements for admission, that often
23 and is well-placed in the comments category. But, of course, there may
24 be other objections against admission as well, which are of a totally
25 different nature. The Chamber doesn't know yet. And since we have not
1 seen your comments until now, the Chamber would like to hear your
2 submissions on the matter.
3 Are you able to make these submissions orally today?
4 MR. HEDARALY: I am not, but Mr. Carrier behind me is, and he
5 could do it right now if it helps the Chamber.
6 JUDGE ORIE: Yes. Then I would like to give an opportunity to
7 Mr. Carrier. These are -- bar table submissions are usually rather
8 complex. So, Mr. Carrier, I take it that we get a clear expose of you
9 what objections either in general terms or on what specific documents are
11 You may proceed.
12 MR. CARRIER: Thank you, Mr. President.
13 Just --
14 JUDGE ORIE: Let me -- perhaps I get it on my screen so that I am
15 better able to follow you.
16 [Trial Chamber and Legal Officer confer]
17 JUDGE ORIE: Although not on my screen, I have it before my eyes
18 at this moment.
19 Mr. Carrier, please proceed.
20 MR. CARRIER: Thank you, Mr. President.
21 The materials that Cermak Defence wish to tender are underlying
22 documents, all of which are of an investigative nature. At this point,
23 the Prosecution is not aware of the outcome of the investigations
24 themselves. And with specific documents, the perpetrators themselves are
25 unknown. Now, clearly, the motion relates to crimes committed by the
1 Serbian military police, paramilitary forces, Serb volunteers, and Serb
2 civilians. This was in their first bar table motion in the Krajina
3 during that period of time.
4 The -- for example, one of the documents, 2D850, is the beginning
5 of an investigation where the perpetrators are unidentified. 2D849,
6 again, unknown perpetrators. 2D844, this one has "probably by local
7 Chetniks." The Prosecution submits that is not sufficiently identifying.
8 2D845, nothing on the perpetrators. 2D851, again. 2D852.
9 And with regard to some of the other documents, there are very
10 detailed accounts of certain instances of crimes being committed where
11 the Prosecution is not in a position to -- to verify that in order to --
12 to stipulate to it. So we've maintained throughout this process with
13 regard to these bar table submissions from the Cermak Defence that our
14 preference is that they pick portions of the Martic Judgement that
15 satisfy their needs. And we're more than willing to stipulate to those
16 needs. But with regard to documents that they want to tender that don't
17 identify the perpetrator, obviously that doesn't satisfy their purpose.
18 And with regard to more detailed accounts, we're not a position
19 to stipulate to that. And with these documents in particulars, given
20 that they're investigative documents, the outcome of the investigation
21 we're not aware of. We're not in a position to stipulate on that basis
23 JUDGE ORIE: Mr. Kay, before I give you an opportunity to
24 respond, it was my understanding that the purpose of this exercise was
25 primarily to establish that circumstances led at the time the
1 investigative authorities to take action in these periods of time, and
2 not primarily for the Chamber to adopt any conclusions or to evaluate the
3 evidence in there but, rather, to give an overall picture of rather
4 intensive investigative activities, which was related to reports on
5 crimes committed against civilians, Croatian -- Croat civilians.
6 Is that well understood?
7 MR. KAY: Not just investigative matters, Your Honour.
8 JUDGE ORIE: No --
9 MR. KAY: This is of a general nature.
10 JUDGE ORIE: On-site investigations go beyond that for example.
11 MR. KAY: Yes. This goes, as the first bar table did, which
12 didn't receive any objection, to the general information that is
13 available on the issue of why there might be or there could be a revenge
14 motive of individuals because of what happened to them in the previous
15 period of time, between 1991 and 1995.
16 This is not meant to be an exhaustive investigation by us proving
17 each and every crime, which would be simply impossible. We don't have
18 the resources for that. That has never been something ever undertaken.
19 But it goes to a relevant issue in the case as to the existence of
20 individuals, because of what happened to them, committing attacks back
21 and not being part of a criminal plan.
22 Now, the history of this goes back to one of late and wrong --
23 failure -- or a failure to disclose Rule 68 material, which required
24 litigation and required us to sort this matter out during the currency of
25 the trial. We submitted this bar table on the 15th of April, 2010
1 we've received nothing back since that time.
2 In our submission, this information contains the kind of
3 information Your Honour has seen within many UN reports, international
4 reports, again, without specific identities or specific lead information
5 that presents a -- a -- an exact conclusion being drawn.
6 However, what it does show is a fact, a background, that these
7 people were killed by somebody on a large scale and on the places and
8 times indicated into the bar table as well as other significant crimes of
9 a destructive nature being committed.
10 We would not be in this position if we had had an opportunity
11 over years to investigate and produce statements from people who provided
12 an alpha to omega conclusion. In the circumstances of this litigation,
13 such a conduct is simply not open to us; it's not possible. And the
14 Trial Chamber would be meeting us straight away with, Well, what's going
15 on here? This is totally unnecessary use of resources if you're going to
16 conduct your litigation like that.
17 All this information comes from the materials of the Prosecution.
18 None of it's our materials. They are the people who have been, for many
19 years, on the ground in the region and have collected the data. And, in
20 our submission, it shows a -- a valid position by us in relation to the
21 issue as to one of revenge by the local population.
22 Again, and the note that I've just been given, because identities
23 are not at issue here. It's the places, where they are falling within
24 the area of the indictment. And as I said, we wouldn't be able to prove
25 all this and set about erecting a Defence whereby we take a thousand, two
1 thousand witness statements from local people detailing what had happened
2 by then. The Court will know that's a simple impossibility.
3 The best we can do with this kind of evidence, which is not
4 unreasonable on our part, in my submission, is put together what is there
5 that shows a picture. And for our purposes, we're not concerned whether
6 these were committed by Serbian forces or -- or Serbian civilians. It's
7 the fact that that they were happening in this region against Croats and
8 in general terms at that time from 1991 to 1995.
9 And, in our submission, what we've done here, having excluded
10 many documents on the way and providing what we see as very concrete
11 information about these reports, is adequate, it's relevant, it's -- it's
12 evidence that the Court is able to receive and is of probative value in
13 the terms of the larger issue, which is the basis for this bar table
15 And, in our submission, it is very unfair that, at this stage,
16 when the last evidence was heard yesterday, that, suddenly, Mr. Carrier
17 comes up with an objection to it that has not been voiced over two
18 months. Previously, we dealt with this matter very amicably for the
19 first bar table submission. We have submitted other details. We have a
20 vast schedule from something called batch 14 which contain many specific
21 allegations which came from interviews taken after these events by NGOs
22 but weren't in the form of witness statements which the -- Mr. Waespi
23 said he couldn't accept because none -- none of this was able to be
24 investigated by them. We've had to abandon all that. And all those
25 places were ones known to me. I had seen them during my experience in
1 the Milosevic case. I was familiar with the places: Cviljane, Cetina,
2 and these other places, and it rang a bell that there were things out
3 there that could be of assistance to us on this particular issue.
4 In my submission, it's very unfair for a one-eyed approach to be
5 adopted on this kind of evidence and thereby disadvantage the Defence
6 from what is a valid submission on the evidence, trying to keep this case
7 totally focussed on -- on the Prosecution perspective of the events.
8 This is far wider than the Martic Judgement. There are other
9 aspects of the evidence which we were familiar with. We've had to
10 abandon that. And we are trying to get information that is evidence that
11 is probative and relevant to the Trial Chamber on this general issue, and
12 we think Mr. Carrier's late edition into this issue and taking this
13 position is very unfair on us because it wrong-foots us at the last
14 moment. What do we do about it now? Given years ago, we could have
15 taken steps to deal with this kind of issue, but that has not something
16 that has been open to us. I only had six months to prepare this case and
17 spent my time on the Prosecution case. This was something that came up
18 as we went along and became an issue that we had to deal with.
19 JUDGE ORIE: Yes. Thank you, Mr. Kay.
20 Mr. Carrier, one issue raised by Mr. Kay was that in two month
21 you didn't say anything and that it's -- you didn't respond, and that you
22 now take a position which Mr. Kay considers not to be in line with an
23 earlier position taken by the Prosecution on bar table submissions on
24 events which took place before the indictment period. And the other one
25 is that he says, Well, we're not proving exactly what happened. But what
1 we are doing, we are establishing that apparently events took place which
2 resulted in reports, et cetera, which give an overall picture, which --
3 which may have affected the minds of those who may have committed or have
4 allegedly committed crimes at a later stage.
5 That's basically what Mr. Kay tell us. So could I have on the
6 two elements a brief response, if you want to respond.
7 MR. CARRIER: Certainly. Thank you, Mr. President.
8 On the first point, in fact, it's completely consistent with our
9 prior position with the first bar table motion by Mr. Kay. He originally
10 filed six motions, the Prosecution had an issue with all the underlying
11 evidence, and in fact the -- that first bar table submission was made up
12 solely of portions of the Martic Judgement itself which was what the
13 issue was. So this is an issue which we've raised consistently with Mr.
14 Kay over and over with regard to the underlying documents. So it
15 certainly isn't something new for him to consider.
16 With regard to the second aspect, again, the Prosecution's
17 position is that the Martic Judgement itself satisfies those grounds, if
18 it's simply that there were crimes committed during that period in the
19 Krajina against the Croatian or Croat population. That's in the Martic
20 Judgement, and we can stipulate to that. And we have already done that
21 with the first bar table motion, so it certainly isn't something new for
22 Mr. Kay to consider, or -- that's something that I've simply raised
23 today, something that the Prosecution's consistently brought to his
24 attention over and over, including the batch 14 statements which he just
25 referred to.
1 [Trial Chamber confers]
2 MR. KAY: Your Honour, just ...
3 [Trial Chamber confers]
4 JUDGE ORIE: The Chamber is intending to admit these bar table
5 documents into evidence but would give an opportunity to the OTP to fill
6 in the -- to fill in a comment column, if they wish to do so.
7 If you say, All our comments and our objections are sufficiently
8 set out in the oral submission, Mr. Carrier, then, of course, there is no
9 need to further wait. But if you would say, Well, if the Chamber would
10 admit that, then at least we would like to fill in the column and say
11 this is in Austria
12 already in 1953, or whatever. I don't know. But do you wish to have an
13 opportunity, such an opportunity, if the Chamber would decide to admit?
14 MR. HEDARALY: No, Your Honour, that's fine. I think our
15 position is clearly stated on the record, and there's no need to fill in
16 the column which -- the purpose of which was to have the record clear on
17 the Prosecution's position with respect to each of these documents.
18 [Trial Chamber confers]
19 JUDGE ORIE: The Chamber admits into evidence the 11 documents
20 appearing in the bar table submission by the Cermak Defence related to
21 the Rule 68 disclosure from the Prosecution's concerning crimes against
22 Croats before Operation Storm.
23 Mr. Registrar, would you please be so kind to prepare a list
24 of -- a range of numbers.
25 [Trial Chamber and Registrar confer]
1 THE REGISTRAR: Your Honour, the exhibit numbers to be assigned
2 to Cermak Defence second Rule 68 bar table submission would be D2147
3 throughout and including D2157. Thank you.
4 JUDGE ORIE: Thank you, Mr. Registrar. The individual documents
5 will be linked to the numbers in a further list to be prepared by the --
6 by the Registrar.
7 [Trial Chamber and Legal Officer confer]
8 JUDGE ORIE: Mr. Kay, we received the spreadsheet, I think,
9 through an e-mail. It should be formally filed.
10 MR. KAY: Absolutely, Your Honour. We were asked to put it to
11 the Trial Chamber, at this stage, in that way. But we will do a proper
12 filing. I'm much obliged.
13 JUDGE ORIE: Thank you.
14 I have one item -- well, as a matter of fact, two items left for
15 after a break, which we'll take soon. The one is a decision on the one
16 remaining document out of the 92 which is MFI'd, whether the Chamber --
17 the handwritten report by Mr. Sacic which was then transcribed in an
18 official report; that's one.
19 The second is closure of the evidentiary phase of the case and
20 further scheduling. We'll deal with that after the break.
21 But I would like to know whether there are any other matters the
22 parties would like to raise on this housekeeping session.
23 If there's --
24 MR. KAY: Your Honour, there was one matter. Witness 86's
25 statement exhibited under seal, P487. He affirmed the B/C/S translation,
1 of course, because he didn't read English, and the B/C/S translation
2 needs to be -- have certain revisions made to it in terms of its
3 accuracy. A schedule has been provided to the Prosecution on -- on this,
4 and that is a matter, in hand. It comes around at this late stage as one
5 is reviewing the evidence and B/C/S speakers, obviously, use the B/C/S
6 content of the document. And that is a matter that the Trial Chamber
7 should receive. I should imagine it is capable of agreement between the
9 JUDGE ORIE: Yes. So there's no need to discuss it. It's a
10 matter of, again, replacing translation.
11 MR. KAY: Yes.
12 JUDGE ORIE: And I think I gave the guidance already for how to
13 deal with replacement of translations. That if there is an agreement
14 between the parties on the matter, that it should be informally sent to
15 the Registrar. The Chamber will look at it, the Chamber will grant
16 permission to replace, and that at the very end we'll have a list of all
17 those translations which were replaced since the -- since the hearings
18 were concluded.
19 MR. KAY: Yes. By and large this is a system that works very
20 well, Your Honour.
21 JUDGE ORIE: Yes.
22 Then is there any other matter the Chamber would expect the
23 parties to raise after the break?
24 MR. MIKULICIC: Yes, Your Honour, one, let's say, tiny matter.
25 It relates to the documents that the Markac Defence was trying to
1 introduce into the evidence via bar table submission. And in that
2 circumstances, Markac Defence contacted the OTP in March of this year.
3 This is the document that depicts the surrender of 21 Kordun Corps after
4 the -- completing Operation Oluja. And we thought that this document is
5 both relevant and of probative value. And although we are aware that we
6 tried to introduce this document after the closing of Defence case, it is
7 our submission that Chamber is entitled to enter into the evidence every
8 document that could be in the interests of justice and which could be
9 relevant and of probative value.
10 It is our position, then, this is the document that we are
11 talking about. And to be precise, this is 3D00314.
12 JUDGE ORIE: You'll forgive me for not having immediately a clear
13 picture of what the document is about.
14 MR. MIKULICIC: Your Honour, this is a document about surrender
15 of 21st Kordun Corps of the Army RSK on 9th of August, 1995.
16 JUDGE ORIE: Yes.
17 MR. MIKULICIC: A huge amount of the weaponry and soldiers had
18 been surrendered to the Croatian forces on that day.
19 JUDGE ORIE: I -- I must honestly admit that I have -- you have
20 now set out what the document is about, I have no clear recollection on
21 how you tried to introduce it. I also do not know what the position of
22 the Prosecution was in relation to that. So I have no clear picture of
23 the procedural history of what is now raised.
24 MR. HEDARALY: Your Honour, there is no procedural history on the
25 record. It's a document that the Markac Defence sought to admit to the
1 bar table, and they have approached us to do so. And our position is
2 consistent with the position we have taken in the past, that that
3 document should have been tendered during the Defence portion of the case
4 if that was what was the intention of the Markac Defence.
5 JUDGE ORIE: So what we're talking about is a document which has
6 not been tendered in any way at all but which has been the subject of
7 discussions between the parties, whether, if a bar table submission would
8 be made, whether the Prosecution would object to that.
9 I think I earlier said something about exceptionally to be
10 admitted once the case is closed. So, therefore, the appropriate
11 procedural way would be to -- I'm not saying that I'm encouraging you to
12 do it, but if the Prosecution seems to oppose, then the only possible
13 avenue would be to make it a bar table motion.
14 MR. KUZMANOVIC: Your Honour, just to add a little depth to this.
15 We did not really get any kind of a response until repeatedly
16 about this document, so obviously that's the reason we're bringing it up
17 to the Chamber now because had we --
18 JUDGE ORIE: Yes. But what now happens and -- and when I earlier
19 said I have no clear recollection, I don't know exactly where we are,
20 what the procedural history of this is, then I was relieved by your
21 answer that it was not on the record yet so that still my memory is --
22 knows where I rightly do not remember anything because nothing was ever
23 said about it.
24 Now, what I would like to avoid is that we now raise matters
25 which are not formally introduced, which are not in any way on the
1 record, and explain why, who responded, at what moment, late, early, what
2 the relevance of the document is. Of course, the Chamber, under normal
3 circumstances, if we're talking about these documents, we know what it
4 is, we have an opportunity to look at it, we have detailed information as
5 to why -- whether it's mainly for procedural reasons or for other
6 reasons, I would suggest - but let me just consult with my colleagues for
7 one second.
8 [Trial Chamber confers]
9 JUDGE ORIE: I emphasise that I earlier said that only in
10 exceptional cases the Chamber would allow new evidence or more evidence
11 to be produced once the Defence case was closed. Keep that in mind. And
12 if you deem it fit to make a bar table submission at this stage of the
13 proceedings, then please explain why it is that the Chamber should not
14 miss this document. And then we'll hear from the Prosecution, and we'll
15 decide on the matter.
16 MR. KUZMANOVIC: We will, Your Honour. We'll file it; it's one
17 document. It's not -- it's a one-page document. So we will file it, and
18 we'll try to file it today, and we'll see where it goes from there.
19 JUDGE ORIE: Yes. And, at the same time, the Prosecution -- just
20 as I said, the Defence should be aware of that only in exceptional
21 circumstances. At the same time, the Prosecution could consider what
22 exactly is at stake, to what extent this one document would totally
23 overturn the situation in this courtroom. Let's try to be practical as
25 No other matters to be expected.
1 Then, after the break, we'll certainly further deal with the
2 closure of the evidentiary phase of the case and further scheduling, and
3 most likely we will give a decision on this one document out of the 92,
4 which is marked for identification.
5 We'll have a break, and we will resume at a quarter past 11.00.
6 --- Recess taken at 10.48 a.m.
7 --- On resuming at 11.24 a.m.
8 JUDGE ORIE: I first would like to deliver the decision on the
9 document which was MFI'd this morning, that's D2109, where the
10 Prosecution had withdrawn its objections as to the provenance.
11 D2109 is admitted into evidence.
12 Another item which I did not announce before the break but I
13 couldn't do so because it's a filing of today and I just wasn't aware of
14 it, that is, the joint stipulation regarding the foundation of exhibits
15 P319 and P757. I don't know whether the -- it's a joint stipulation by
16 the Gotovina Defence and the Prosecution. What about the other parties
17 joining in this stipulation or not joining in the stipulation?
18 MR. KUZMANOVIC: Your Honour, I'll have to take a quick look at
19 it. I know it came today. I was -- I am aware of it, but we'll let the
20 Court know very quickly.
21 JUDGE ORIE: Could we -- could we make an arrangement that if we
22 have not heard from the other Defence teams by, well, let's say by next
23 week, Tuesday, that that silence is to be interpreted as joinder?
24 MR. KUZMANOVIC: Your Honour, we will join. I just -- I was
25 aware of it; I just saw it again. We will join in the stipulation.
1 Thank you.
2 JUDGE ORIE: Yes.
3 Mr. Kay, it is about who provided a certain exhibit.
4 MR. KAY: I'm just catching up on it. Your Honour -- if
5 Your Honour gives me a few seconds, we can deal with this now, with the
6 Court's leave.
7 Your Honour, we can join this, yes.
8 JUDGE ORIE: So this has now become a joint stipulation between
9 all parties, which is, for me, a reason to take you back to -- which is
10 the non-admission of -- what was 65 ter number 7667, that is, the Subota
11 stipulation, which was also a stipulation between the Gotovina Defence
12 and the Prosecution that no activities had been developed since
13 August 1995 and that only in 2006 that case continued or was given any
14 follow-up. There, the other parties did not join in this stipulation.
15 The Chamber has decided that it will not admit into evidence the
16 entire case file which mainly deals with what happens after 2006
17 exhumation, 2007, witnesses, et cetera. For very practical reasons, the
18 Chamber may reconsider that decision of non-admission for matters which,
19 of facts at the time - which is different from what we just had, which is
20 who delivered a certain document. But if we're talking about facts at
21 the time, that is, what happened between 1995 and 2006, the Chamber may
22 have huge problems in Judgement drafting. Not to say that this will be a
23 central element in the Judgement; I don't take it. But if we have to --
24 if we want to rely on one document or if we want to rely on the
25 stipulation, then it creates a lot of technical problems for us to deal
1 with one party and with the other parties and how to resolve that. And
2 then it depends on whether the matter only affects one party or whether
3 it affects all the parties. It is also difficult for the Chamber to
4 forecast what problems that would give us.
5 And, therefore, where the matter seems to be relatively simple, I
6 went through the case file during the last break where we have a clear
7 starting point which limits itself to August 1995, photographs taken, and
8 then we see that there is new -- there is a case file with a number,
9 which, as we know from Mr. Bajic, is a 06 number, that is, a file being
10 opened in 2006; and then from the logic from what you see there, what
11 reference is made to early investigative measures, if you look at what
12 they intend or what they are asking for to be further investigated, that
13 it seems - again without giving any final judgement on that - it seems
14 that the stipulation between the parties is in every way supported by the
15 material the Prosecution intended to tender, if there would be no
17 Now, the Chamber may find itself, if it's a stipulation between
18 some parties only, may find itself later in problems and, therefore,
19 urges both the Cermak Defence and the Markac Defence to consider whether
20 there is a way to join that stipulation.
21 MR. KUZMANOVIC: Your Honour, we talked about it over the break,
22 and we decided to join the stipulation.
23 So just to inform the parties and the Chamber.
24 JUDGE ORIE: Yes. And if you say "we" ...
25 MR. KUZMANOVIC: Meaning the Markac Defence, among ourselves.
1 JUDGE ORIE: Yes.
2 Cermak Defence, if you want more time, Mr. Kay, then ...
3 MR. KAY: If I could just follow it through, Your Honour, and
4 have a look at it, and then we will be able to tidy this up, I'm sure,
5 this morning. We don't want to cause any problems for the Trial Chamber,
6 if we possibly can.
7 JUDGE ORIE: Yes. Then ...
8 [Trial Chamber and Legal Officer confer]
9 JUDGE ORIE: Yes. I now come to the next item which is the
10 closure of the evidentiary phase of the case. And after that we'll deal
11 with further scheduling.
12 The hearing of evidence in the case of the Prosecutor versus
13 Ante Gotovina et al is closed, but I make the following reservations,
14 exceptions to that. First of all, we most likely will hear from Mr. Kay
15 on the stipulation on --
16 MR. KAY: Your Honour is quite right; that activity just then was
17 related to that. And I have been assured it's a stipulation we can also
18 lend our support to. And that is agreed.
19 Thank you.
20 JUDGE ORIE: That's on the record. Somewhat relieved now, I
21 continue with the closure of the hearing of evidence in the case of the
22 Prosecutor versus Ante Gotovina et al.
23 I, however, make one exception for a bar table submission still
24 expected today from the Markac Defence. Whether that leads to admission
25 into evidence is another matter, but at least that is understood, that
1 we'll receive and later decide on such a motion. And that's, therefore,
2 exempted from the closure.
3 MR. KUZMANOVIC: Much obliged, Your Honour. Thank you.
4 JUDGE ORIE: Then -- and that would be one document about the
5 Kordun Corps; that's how we understood it.
6 Now, there was still a couple of matters pending which have not
7 been decided. As far as the Chamber, at this moment, can oversee, it
8 does not except and even finds it a bit difficult to imagine that those
9 pending issues where decisions are still to be taken would create a
10 situation in which the parties would seek to present further evidence.
11 We do not expect that. But you have not read our decisions. We have not
12 seen any applications to that extent, but just for you to know that the
13 Chamber doesn't expect that. But if it happens, then we'll consider it,
14 what the consequences are; first, of our decision, and, second, then,
15 what that decision or those decisions have triggered you in terms of
16 making applications. But, we, at this moment, have difficulties
17 imagining that that would lead to hearing further evidence.
18 The same thing - and I think the Gotovina Defence has already
19 made a reservation in that respect - there are a few matters pending
20 before the Appeals Chamber. There, it's far more difficult for us to
21 forecast or to know whether the decisions to be taken by the
22 Appeals Chamber would create any situation which would have an impact on
23 evidence already heard or still to be heard or whatever. We do not know.
24 If decisions will be delivered by the Appeals Chamber, the Chamber will,
25 in relation to whatever decision will be taken, will carefully consider
1 whether or not this should have any consequences for the closure of the
2 case or in any other way have any consequences for the proceedings before
3 this Trial Chamber. And it goes without saying that parties, of course,
4 can make submissions once we have seen such decisions. We just don't
5 know them. It's still to be seen. That is -- these are two observations
6 in relation to the closure of the hearing of evidence in this case.
7 Any further comments on what I just said?
8 Then the last item on my agenda is scheduling.
9 The Chamber will deliver, soon, a decision on the final brief
10 word extension requests. In this decision, we intend also to further set
11 out scheduling such as deadlines for filing final briefs, dates of
12 hearing closing arguments, and times allocated to present closing
14 The Chamber has in mind to receive the final briefs in early
15 July and hear the closing arguments soon after the summer recess.
16 The Chamber would like to inquire with the parties what they
17 expect in this respect and whether the Chamber should keep in mind any
18 scheduling conflicts that may exist. So, therefore, having given a
19 glance on what you could expect from us - early July, final briefs; after
20 the recess, closing arguments - whether there are any further comments,
21 comments, or observations by the parties.
22 Mr. Kay.
23 MR. KAY: Your Honour, early July, looking at the calendar on my
24 watch, that would imply to me three weeks. That would be too short a
25 time, in my submission, given that we're just finishing evidence. A lot
1 of my attention has had to be diverted in the last few weeks, and
2 particularly -- in the last few months, in fact, with the Judges'
3 witness, re-opening the case. And about three or four weeks for me to
4 pay attention to what the rest of my team have been working on and to
5 also write several sections myself is going to be too much of a
7 I would ask the Court for a mid-July date. Because I -- I can
8 just feel that that is too short a period of time.
9 JUDGE ORIE: That's clear.
10 MR. KAY: I'm sorry about that. And if I could have --
11 JUDGE ORIE: No, you don't have to apologise for putting your
12 position before the Chamber, Mr. Kay. There is never a reason to
13 apologise for what you say is hard work to be done. That's ...
14 MR. KAY: Yes. Thank you.
15 JUDGE ORIE: Well, and early July, of course, is a bit of a
16 flexible expression, which was --
17 Let me first hear from Mr. Kuzmanovic.
18 MR. KUZMANOVIC: Your Honour, the only conflict I have - I have
19 made the Chamber aware, through informal communications, about an issue
20 that it looks like it's not going to affect, for me, the briefing.
21 Shortly after the recess, from the 17th to the 22nd of August, I
22 am occupied in the States. Other than that, I have absolutely no
23 August conflicts. So I wanted to let the Chamber know about that for me
25 JUDGE ORIE: You mean that would be relevant for --
1 MR. KUZMANOVIC: Closings.
2 JUDGE ORIE: Yes. Now --
3 MR. KUZMANOVIC: I know that recess and the -- [Overlapping
4 speakers] ...
5 JUDGE ORIE: [Overlapping speakers] ... closing arguments --
6 MR. KUZMANOVIC: [Overlapping speakers] ... the 15th.
7 JUDGE ORIE: Recess ends the 15th, but I think this Chamber has
8 announced it will not sit in the week starting the 15th.
9 Whether we announced it or not, we will not sit that week.
10 MR. KUZMANOVIC: Okay. So the 17th through the 22nd, Your
11 Honour --
12 JUDGE ORIE: Yes. Because the 15th is a Monday, the 17th would
13 be Wednesday up to and including that weekend after that.
14 MR. KUZMANOVIC: Yes.
15 JUDGE ORIE: That week, we'll not sit.
16 MR. KUZMANOVIC: Okay. Thank you, Your Honour.
17 JUDGE ORIE: Mr. Misetic.
18 MR. MISETIC: Mr. President, we don't have any problems with the
19 proposed schedule. I.
20 Did wish to raise one matter which arose at the 98 bis hearings,
21 and we'd ask the Chamber to keep this in mind in scheduling.
22 The Chamber, in the 98 bis proceedings, set out a procedure
23 whereby the Prosecution got a certain block of time and then all three
24 Defences teams received an equal amount of time. But as it turned out,
25 the Prosecution's arguments did not exactly break out into spending 33
1 per cent of its time with respect to each accused, which result in a
2 situation that came up where the Markac Defence was kind enough to give
3 some of its time to the Gotovina Defence to be able to respond.
4 At the moment, I'm not exactly sure how to deal with the issue.
5 But in terms of scheduling, we would appreciate some flexibility in terms
6 of being able to respond to the Prosecution's arguments. That depends
7 on, of course, how the Prosecution argues in its final argument, to avoid
8 a situation where three hours are spent on one accused and one hour are
9 spent -- is spent on two other accused. And I just wanted to bring that
10 to the Chamber's attention right now, that depending on how the
11 Scheduling Order breaks out and what happens in final argument, we may
12 ask for some flexibility in that respect.
13 Thank you.
14 JUDGE ORIE: Thank you, Mr. Misetic.
15 Mr. Kehoe.
16 MR. KEHOE: Just one last thing, Mr. President. I should have
17 told Mr. Misetic this - we chatted about it - but, of course, we have no
18 problem with the proposed schedule as requested by Mr. Kay.
19 In our motion, with regard to the word limit, we did ask for some
20 alternative remedy, should the Chamber consider granting the OTP 's
21 request in any regard. And that would divert from the simultaneous
22 filing of briefs to allow the Defence to take an additional two weeks
23 after the filing of the OTP's brief and whatever information they have to
24 allow to us to respond to that.
25 So in taking the scheduling into consideration, I just wanted to
1 bring there to the Court's attention. I know we just filed that this
2 morning and I know it's rather recent and I'm not certain if my learned
3 friends have had the opportunity to see that, but that's certainly in our
5 JUDGE ORIE: Yes. And I -- I think if you would ever have
6 another trial, I would invite you to invite -- to inform the Court at
7 every session what filings are to be expected in the two hours -- the
8 first two hours of the session so that we can quickly --
9 MR. KEHOE: Well, Mr. President, we had until noon time to file
10 it, and so ...
11 JUDGE ORIE: Yes. Mr. Kehoe, I'm -- you've got to know me a
12 little, I think, by now that it's not serious criticism.
13 MR. KEHOE: Okay. I --
14 JUDGE ORIE: Yes, Mr. Hedaraly.
15 MR. HEDARALY: Thank you, Mr. President.
16 First of all, just so the Chamber knows, I know the Chamber
17 stated that it would render a decision soon on the motion to extend the
18 word limit, but we have -- I have only briefly looked at the motion of
19 the Gotovina -- well, its response, and I guess what we view as a motion,
20 as it's seeking also relief. So we will file today a request for leave
21 to respond to that -- to that motion. We'll hope to file that today, and
22 then we'll try to file it as soon as possible after that.
23 In terms of the scheduling, we, as well, have been involved in
24 these Chamber witnesses and the last witnesses obviously. So we would
25 join in Mr. Kay's proposal of a mid-July date for final briefing. But,
1 of course, we -- we leave it to the Chamber, although early July is
2 quite -- is quite a wide range, so as soon as we can have some clarity on
3 what the Chamber intends, we would -- and we would have a preference for
4 the middle of July as well.
5 JUDGE ORIE: Yes. Thank you for that.
6 Is there any other matter?
7 MR. KAY: Just one matter on the closing arguments after the
8 final briefs are in, Your Honour. I have a domestic request and that is
9 that we can have a summer holiday as well in this, that after we file
10 Court factors in for us, the fact that some of us do need a holiday. And
11 working over another summer holiday, after the last previous years, is --
12 is not too attractive back home. If I can put it that way. If the Court
13 would bear in mind that there others who expect us to have a holiday as
15 JUDGE ORIE: Yes, yes. Now I'm fully aware of that --
16 MR. KAY: Yes.
17 JUDGE ORIE: -- since my youth, that the text of Cliff Richard's
18 "Summer Holiday" is with me.
19 But to be very practical, would you -- I mean, you file a final
21 MR. KAY: Yep.
22 JUDGE ORIE: Well, let's say, July. Then we will have -- you
23 will have to prepare for final arguments.
24 MR. KAY: Yes.
25 JUDGE ORIE: Now, where did you have in mind -- would you have --
1 and how much time - not to say that we're granting everything but to
2 be -- would you say, Well, I'd like to have, well, let's say, the two
3 last week, end of July, before we start. Or is it that you say, Make the
4 final arguments as early as possible so that September is still available
5 for holidays?
6 And it's not -- I learned at home that I have to be very
7 practical in this matters.
8 MR. KAY: Well, we are tied in with school holidays. That's --
9 that's the problem.
10 JUDGE ORIE: Well, is this the --
11 MR. KAY: If we could have three weeks' holiday. So if we have
12 the last week of July or two weeks of August, however the Court
13 configures the break, that we keep that as a break. And then the time
14 for response to -- for preparations for the closing argument can be
15 factored after that. That's --
16 JUDGE ORIE: Yes. But then, of course, the Chamber would need a
17 further indication as to how much time you think you would need for that.
18 If you say, Well -- if we say, final briefs, early July; the final
19 argument after the recess, then we have -- well, let's say, if early
20 July would be after the first week of July, then it would be
21 approximately five weeks, which we had scheduled as time in between. We
22 did not express ourselves on whether you would be in your -- on the beach
23 or in your law firms during that period of time.
24 Do you think that's enough for holiday and being in your offices,
25 or would you say, No, for having our families with us for two weeks. How
1 much time would you then consider you would still need to further
3 MR. KAY: I think a preparation time in response of three weeks
4 is -- is enough. And that's manageable. We all know the case. But
5 whatever time is, if we can have the three-week holiday and then three
6 weeks --
7 JUDGE ORIE: So -- but I'm asking this because I'm wondering
8 where there is a problem. Let's just assume that we would follow you and
9 say mid-July. Then two weeks would remain in July which are school
10 holidays weeks, I take. Then I said we're not sitting in the week of the
11 15th, which brings us already to the 22nd of August, a Monday, in that
12 week, at least, which would create the initial three weeks. So,
13 therefore, I'm -- I'm asking myself: What -- if -- if we would you give
14 you the mid-July option and if we would certainly not resume before the
15 22nd of August, where you say you would need two weeks for the family and
16 three weeks for a -- preparing, that's five weeks, which is, I would say,
17 more or less safe-guarded in what is projected at this moment, if we
18 would follow your suggestion.
19 MR. KAY: That week of the 15th of August which is a court blank
20 week, I know Mr. Kuzmanovic has got commitments. I have got lecturing
21 commitments that week as well for -- at Salzburg, two days. I know
22 others are going to be there as well. I'm doing two days, though, which
23 was decided a year ago that I would, having missed the last two summers
24 for Mr. Triffterer -- Professor Triffterer.
25 So, I in a way --
1 JUDGE ORIE: Would you say ...
2 MR. KAY: [Overlapping speakers] ...
3 JUDGE ORIE: [Overlapping speakers] ... a week after that --
4 MR. KAY: Yes.
5 JUDGE ORIE: A couple of more days would -- because now it
6 becomes more clear. You need two weeks for the family.
7 MR. KAY: Yeah.
8 JUDGE ORIE: You need three weeks for preparations of which some
9 days were stolen by Professor Triffterer, and whether we can provide
10 compensation for that theft.
11 Is that -- now it becomes clear to me where the problem is.
12 MR. KAY: Yes.
13 JUDGE ORIE: Okay.
14 MR. KAY: Yes, it's that.
15 JUDGE ORIE: Yes. Well, it is a public record. My apologies
16 already to Professor Triffterer.
17 Any other matter?
18 MR. KEHOE: Mr. President, may I offer a possible resolution
19 to -- for all parties, that we just have oral arguments September 1st or
20 1 September, if that's satisfies the Court?
21 JUDGE ORIE: Well see. You are very generous for Mr. Kay.
22 MR. KEHOE: Well, I just figured without going into the dicing
23 and splicing of respective schedules and people having to be various
24 locales that might be the most -- [Overlapping speakers] ...
25 JUDGE ORIE: [Overlapping speakers] ... yes, we'll consider that.
1 Most important for us was where there would be real problems. We have
2 heard from Mr. Kay where his real problems are. We heard from
3 Mr. Kuzmanovic where his real problems are.
4 Mr. Kehoe, as always, you have no real problems.
5 MR. KEHOE: You know --
6 JUDGE ORIE: And that's appreciated. And you give a suggestion.
7 We'll consider that.
8 MR. KEHOE: That's right.
9 JUDGE ORIE: Mr. Hedaraly, anything to add?
10 MR. HEDARALY: I prefer not, Your Honour.
11 JUDGE ORIE: No.
12 Mr. Kuzmanovic.
13 MR. KUZMANOVIC: Your Honour, I don't want to prolong this, but
14 I -- what Mr. Kehoe suggested as a possible alternative is agreeable.
15 That Monday, the 30th of August -- the 30th of August is a Monday;
16 September 1st is a Wednesday. So, that -- that range fits with us.
17 JUDGE ORIE: Yes. We'll consider it.
18 We have been, for quite a while, together in court, normally with
19 the accused; today without the accused. I would express the appreciation
20 of the Chamber for the cooperative attitude we usually have found. It's
21 not uncommon that small frictions now and then arise as well. We have
22 dealt with them in such a way that we still -- that I still can say that,
23 finally, the Chamber considered the atmosphere in the courtroom over
24 these many many months the type of atmosphere one would desire.
25 There are still hard times to come. The parties will have to do
1 a lot the work. The Chamber will have to a lot of work. To the extent I
2 ever was at moments a bit unfair to you, I still hope that you will
3 forgive me for that.
4 And we'll resume at the date which you will find in the decision,
5 which includes scheduling.
6 We stand adjourned, sine die.
7 --- Whereupon the hearing adjourned at 11.57 a.m.
8 sine die