1 Tuesday, 18 September 2012
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.34 a.m.
5 JUDGE ORIE: Good morning to everyone.
6 Madam Registrar, would you please call the case.
7 THE REGISTRAR: Good morning, Your Honours.
8 This is the case IT-09-92-T, The Prosecutor versus Ratko Mladic.
9 JUDGE ORIE: Thank you, Madam Registrar.
10 If there are no preliminaries, the Chamber received a
11 submission -- at least a courtesy copy of a submission the Defence makes
12 in relation to the associated exhibits we discussed yesterday. We'll pay
13 proper attention to that.
14 If there are no other preliminaries, then we will continue to
15 hear the evidence of the present witness, but we'll do that in closed
16 session. And just to inform those who are in the public gallery, we'll
17 remain -- we expect to remain in closed session for the whole or almost
18 the whole of this day.
19 We turn into closed session.
20 [Closed session]
11 Pages 2503-2558 redacted. Closed session.
22 [Open session]
23 THE REGISTRAR: We're in open session, Your Honours.
24 JUDGE ORIE: Thank you, Madam Registrar.
25 Mr. Lukic, it seems practical to me that we first give an
1 opportunity to the Prosecution to make submissions in response to the
2 written submissions, of which we received a courtesy copy. By the way,
3 are they filed meanwhile?
4 MR. GROOME: Our information is that they have been filed,
5 Your Honour.
6 JUDGE ORIE: Then we can proceed on that basis.
7 Mr. Lukic, let's first listen to Mr. Groome and then you have an
8 opportunity to respond. And we are talking about, I think, P186, P188,
9 P189, P190, P192, and P193. Oh, no, 193 has been admitted, meanwhile,
10 into evidence, yes.
11 Please proceed.
12 MR. GROOME: Your Honours, it's -- I've made observations or
13 submissions with respect to those exhibits yesterday, and it is not my
14 intention to repeat them here. I simply want to address, in summary way,
15 the examples cited by the Defence in paragraph 11. Six examples that
16 they contend support their position.
17 We first note that apart from the final example in 11F, none of
18 the instances cited by the Defence in this paragraph concerns a decision
19 by the Trial Chamber on the admission into evidence of tendered exhibits.
20 Second in the way of a general observation, the notice does not
21 set out the Defence position concerning the authenticity of any of the
22 documents to which they objected yesterday. If that's conceded, there's
23 nothing for me to make submissions on, if the authenticity is conceded.
24 If there is a challenge to their authenticity, then I would request an
25 opportunity to investigate the provenance of the individual documents and
1 make further submissions in that regard.
2 And as I believe the Chamber is well aware, the notice or the
3 submission by the Defence as it concerns P193 is now moot. So if I can
4 begin with paragraph 11A, and this dealt with 65 ter 1027, the Chamber
5 did not rule against the admission of this document. This was an ECMM
6 report, the organisation for which the Witness Colm Doyle worked. The
7 Chamber simply asked the Prosecution attorney on that -- dealing with
8 that particular witness:
9 "Would you like to keep it until a bar table motion?"
10 And the Prosecution accepted the advice or accepted the
11 suggestion by the Chamber and did not pursue tendering the document any
13 With respect to the document in paragraph 11B, that's 65 ter
14 1D172, the Defence did not even propose to tender this document. It was
15 a book published in 1969 about Islam, and Defence counsel in relation to
16 this exhibit stated:
17 "I will not be seeking to tender this because I do not believe
18 the witness can -- the witness to introduce this type of book into
20 With respect to the submission in paragraph 11C regarding 65 ter
21 1D137, it was the Defence that withdrew its proposal to tender this
22 document. The Trial Chamber has stated:
23 "Sure, but you can tender it through a witness who has knowledge
24 about its provenance and veracity. The witness knows nothing about this
1 But again it was the Defence counsel who withdrew its tendering
2 of the document.
3 With respect to paragraph 11D, this related to 65 ter 17833, the
4 Defence was not prevented from tendering this document. The Trial
5 Chamber stated:
6 "If there's no objection in itself against the list to be
7 admitted into evidence, then perhaps the parties could sit together and
8 see under what Rule they could have this admitted into evidence. But the
9 witness says he had not seen a list, although he heard about it, and that
10 he seems not to be a very good basis for admission. But this is not an
11 attempt to bar anything from becoming into evidence."
12 Defence counsel then withdrew his request to tender the document
13 and said that he would use it with another witness.
14 With respect to paragraph 11E, this is 65 ter 1D182, the Defence
15 did not tender this document. The Prosecution objected to the use of
16 this document. And if Your Honours will recall, this was commentary
17 taken from the Internet of a former US fire-fighter talking about other
18 fire-fighters being armed and it was not directly related to the
19 situation that was being in our position with respect to the situation
20 discussed with the witness. So the -- the Defence itself did not
21 ultimately tender that document, so the Chamber never had the opportunity
22 to rule on it.
23 And then with respect to paragraph 11F, this was 65 ter 1D190.
24 This document was marked for identification because the witness could
25 only comment on a small part of this 13-page document. According do the
1 Defence notice which states:
2 "The Chamber directed the Defence to only upload the portion of
3 the document on which the witness had knowledge."
4 It's our submission that this is not correct. That there was no
5 issue concerning uploading any portion of the document. It was simply
6 marked for identification at the time that it was used.
7 And, Your Honour, that's the totality of the submissions I want
8 to make in response to the written notice filed today.
9 Thank you.
10 JUDGE ORIE: Thank you, Mr. Groome.
11 Mr. Lukic, two matters. First, challenges to authenticity; and,
12 second, any further comments on what Mr. Groome presented to us in the
13 last couple of minutes.
14 You have an opportunity to do it now. I can imagine that
15 although you must have looked at A to F in paragraph 11 before. I leave
16 it to you how you would prefer at this moment to proceed.
17 MR. LUKIC: Thank you.
18 First, regarding the authenticity issue, we will accept, since we
19 cannot prove the authenticity, we can accept the offer by the Prosecution
20 to prove the authenticity of those documents.
21 JUDGE ORIE: Let me see.
22 MR. LUKIC: We cannot do that, of course.
23 JUDGE ORIE: No. The question is whether you challenge the
24 authenticity. Because the Rules say that the Chamber may require proof
25 of authenticity, but, unless in many common-law traditions there are ways
1 of having admitted into evidence documents even if no specific proof on
2 their authenticity has been provided. If you challenge the authenticity,
3 of course the Chamber would like to know on what basis so that the
4 Chamber can consider whether or not it will require the Prosecution to
5 present proof of authenticity.
6 That, as far as the authenticity is concerned. I did not
7 understand that the Prosecution offered to prove the authenticity but
8 that they would respond, and, of course, that may consist of an offer to
9 prove, but that they would respond to any challenge to authenticity.
10 If I understood you well, Mr. Groome.
11 MR. GROOME: That's correct, Your Honour. In particular, one of
12 the documents is authored by the accused so it may that they, in their
13 discussions with the accused, may have already formed a view about
14 whether they wish to challenge the authenticity or not, but the
15 Prosecution certainly would be prepared to provide information and then
16 proof if necessary about the authenticity.
17 JUDGE ORIE: Yes. That, as far as authenticity is concerned.
18 Would you like to add anything to that, Mr. Lukic?
19 MR. LUKIC: Only that this witness was not good source to -- to
20 confirm the authenticity of any of these documents.
21 JUDGE ORIE: No questions were asked about -- from him. So it
22 seems that although some of the documents -- I don't know exactly.
23 Sometimes he was asked about whether he had known documents --
24 MR. LUKIC: Yes.
25 JUDGE ORIE: -- and when he had seen them for the first time.
1 That's clear. We have to look at that very precisely.
2 Any further matters.
3 MR. LUKIC: On authenticity or anything else?
4 JUDGE ORIE: Well, we started with authenticity. So if you want
5 to add anything to that, please do so. And then we'll move on to the six
6 examples you relied.
7 What is it valid for discussions between accused and counsel is
8 valid for members of the team and counsel as well.
9 Please proceed, Mr. Lukic.
10 MR. LUKIC: And regarding the -- the -- the objections that we
11 withdraw some documents after your warning to us that it shouldn't be
12 introduced through a certain witness, yes, we did that. If you want us
13 to be persistent and not to listen to your warnings and then we can do
14 that, but we think that we actually acted, at that time, fairly. But,
15 first, we were warned that that's not good document to introduce through
16 a certain witness. Now we objected, actually, on the same grounds for
17 these documents and the witness who testified today and yesterday.
18 So we think that the ground is not moot if we withdrew our
19 proposal to -- to have one document introduced into evidence.
20 JUDGE ORIE: Mr. Lukic, I would like to invite you, if you say
21 "we were warned," well, you were given -- certainly sometimes you were
22 given guidance.
23 MR. LUKIC: Guidance.
24 JUDGE ORIE: And sometimes, as you indicate yourself, it was not
25 whether this Chamber considered the document inadmissible. But, for
1 example, to bar table it now or later, which is guidance, which certainly
2 does not go in the direction of non-admission. Therefore, I think it
3 would be good for the Chamber to know where you say, This should not be
4 admitted, or it should not be admitted in the way the Prosecution
5 tendered it.
6 MR. LUKIC: It shouldn't be admitted in the way the Prosecution
7 tendered it, Your Honour.
8 JUDGE ORIE: But there are no substantive objections against
9 admission, as far as matters stand now?
10 MR. LUKIC: That's true.
11 JUDGE ORIE: Then --
12 MR. LUKIC: Excuse me.
13 [Defence counsel confer]
14 MR. LUKIC: Actually, I was just warned that we do have some
15 objections. For example, for the document that says and bears my
16 client's name at the end. If it's bar tabled, we would have objections
17 that go with the bar table documents.
18 JUDGE ORIE: That is a document MFI'd under what number?
19 MR. LUKIC: I will give you the number. It's MFI 189.
20 JUDGE ORIE: 189.
21 MR. LUKIC: Yes.
22 JUDGE ORIE: Described as the VRS Main Staff order, signed by
23 Ratko Mladic.
24 MR. LUKIC: Yes.
25 JUDGE ORIE: Yes. That is hereby on the record.
1 Do we also understand that you would not oppose against the other
2 documents to be bar tabled, apart from whether it would be best done now
3 or at any later stage?
4 [Defence counsel confer]
5 MR. LUKIC: I'm afraid that we have to stand on our prior
6 submissions at this moment, Your Honour. I cannot go in any -- any --
7 anything else. But I'll -- aside we have in our motion.
8 JUDGE ORIE: Yes. At the same time, you say I was just warned
9 that we do have some objections and then you gave one example. So
10 therefore, apparently, you are aware of other objections you may have,
11 but let's not deal with the matter at this moment.
12 You say you stand with your submissions and there's no wish to
13 add anything to that?
14 MR. LUKIC: No.
15 JUDGE ORIE: Then the Chamber will consider the matter and we'll
16 decide on it.
17 Is there any other matter at this moment?
18 MR. LUKIC: Not on our side, Your Honour.
19 MR. GROOME: Not from the Prosecution, Your Honour.
20 JUDGE ORIE: No.
21 Mr. Groome, apart from that, we have only 12 or 13 minutes left,
22 the next witness is not yet available but will be available tomorrow
23 morning at 9.30?
24 MR. GROOME: That's correct, Your Honour.
25 JUDGE ORIE: Then we will adjourn for the day, and we resume
1 tomorrow, Wednesday, the 19th of September, at 9.30 in the morning, in
2 this same courtroom, I.
3 --- Whereupon the hearing adjourned at 1.04 p.m.,
4 to be reconvened on Wednesday, the 19th day of
5 September, 2012, at 9.30 a.m.