Tribunal Criminal Tribunal for the Former Yugoslavia

Page 8806

 1                           Monday, 18 February 2013

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 9.35 a.m.

 5             JUDGE ORIE:  Madam Registrar, would you please call the case.

 6             THE REGISTRAR:  Good morning, Your Honours.  This is case

 7     IT-09-92-T, the Prosecutor versus Ratko Mladic.

 8             JUDGE ORIE:  Yes, and good morning on behalf of the Chamber as

 9     well.

10             One second, please.

11                           [Trial Chamber confers]

12             JUDGE ORIE:  The Chamber was informed that both parties have

13     preliminaries and I'd rather -- the Defence as well.  For the Defence to

14     raise the matter, the Chamber first wants in private session to know what

15     it is about.  We turn into private session.

16                           [Private session]

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Page 8807

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 5                           [Open session]

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

 7             JUDGE ORIE:  Thank you, Madam Registrar.

 8             Ms. Marcus.

 9             MS. MARCUS:  Maxine Marcus for the Prosecution.  Good morning,

10     Your Honours.  It comes to my attention, actually, that this -- the

11     motion which we'd like to discuss was a confidential motion.  I apologise

12     for not rising sooner, so I think we should be in private session.

13             JUDGE ORIE:  Then we return into private session.

14                           [Private session]

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Page 8808











11 Page 8808 redacted. Private session.















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 7                           [Closed session]

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Page 8810











11 Pages 8810-8870 redacted. Closed session.















Page 8871

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14                           [Open session]

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

16             JUDGE ORIE:  Thank you, Madam Registrar.

17             We adjourn and we'll resume at 1.30, and after the break we'll

18     deal primarily with some administrative matters.

19                           --- Recess taken at 1.12 p.m.

20                           [The accused entered court]

21                           --- On resuming at 1.33 p.m.

22             JUDGE ORIE:  Before I give you an opportunity, Mr. Groome, to

23     submit whatever you wish to submit at this moment.

24             Mr. Ivetic, the Chamber noted that there was no further need

25     expressed to further delay the cross-examination of the previous witness

Page 8872

 1     so that's hereby on the record.

 2             Then, Mr. Groome.

 3             MR. GROOME:  Thank you, Your Honour.

 4             The first matter I wish to raise, if the Chamber recalls at the

 5     end of last year the Prosecution has proposed the use of a lexicon and

 6     before the year ended the substance of what was to be in that had been

 7     agreed between the parties and it was simply left for CLSS to verify the

 8     translations.  That has been done.  It has been uploaded as 28678 on the

 9     Prosecution's 65 ter list.  This information had been provided to the

10     Mladic Defence last week.  So unless there's an objection, the

11     Prosecution at this stage would tender that into evidence.

12             JUDGE ORIE:  Any submissions as far as the Defence is concerned?

13             MR. STOJANOVIC: [Interpretation] None, Your Honour.  That's

14     correct, we received it and we'll see how we'll proceed from there on.

15             JUDGE ORIE:  Well, it's tendered by the Prosecution, so if you do

16     not object then the Chamber, either immediately or once we have further

17     looked at it, may admit it.  So therefore -- or do you need time to -- if

18     you say I need one or two days to review the lexicon then --

19             MR. STOJANOVIC: [Interpretation] That's correct, Your Honour.  We

20     will certainly review it.  We've received it and we will give our

21     response shortly.

22             JUDGE ORIE:  Yes, not later than by the end of this week.

23             MR. GROOME:  Your Honour, and just so that my submission is

24     complete, the Prosecution did adopt and incorporate all of the suggested

25     amendments by CLSS.

Page 8873

 1             JUDGE ORIE:  Yes.

 2             MR. GROOME:  Your Honour, the second point I wanted to raise.

 3     Your Honours on a number of occasions, the Chamber has made remarks which

 4     I have understood to indicate a lack of clarity on the legal status and

 5     obligations arising out of different legal documents such as

 6     Security Council Resolutions and other UN documents.  So I want to at

 7     this time raise the possibility of the Prosecution seeking to identify a

 8     recognised international law expert who could provide a report on such

 9     issues.  If this is an idea which the Chamber considers merits further

10     exploration, I would proceed in the following manner:  First I would work

11     with the Mladic Defence to develop an agreed list of the relevant

12     documents.  Second, the Prosecution would identify an expert and then

13     make eventually the necessary application before this Chamber to add a

14     witness to our 65 ter list.  In that application, the Chamber would have

15     all of the information it would need to make an informed decision about

16     whether such a witness was necessary.

17             Your Honour, in preparation for this I have prepared a memo that

18     lists -- is a comprehensive list of all UN documents issued during this

19     period, and I've also indicated which ones the Prosecution would propose

20     would be relevant for an expert's opinion.  If the Chamber wishes, I've

21     made enough copies, that can be distributed now.  And again I would

22     invite the Defence to identify documents that it believes the Chamber

23     should have the benefit of expert legal opinion as to their -- who's

24     bound by the document and what are the implications, the legal

25     implications of the document.

Page 8874

 1             JUDGE ORIE:  Yes, you want to distribute it now?

 2             MR. GROOME:  Yes, Your Honour.  If I could ask the assistance of

 3     the usher.

 4             JUDGE ORIE:  Yes.

 5                           [Trial Chamber confers]

 6             MR. GROOME:  And of course should the Chamber ...

 7             And, Your Honour, of course the Prosecution recognises should the

 8     Chamber decide to exercise its authority under Rules 54 and 98 and direct

 9     the Prosecution to have additional documents put before the expert, we

10     would of course include those as well.

11             JUDGE ORIE:  Yes.  We'll have a look at the document, Mr. Groome.

12     In general terms the Chamber is usually in favour of hearing the

13     submissions of the parties on these matters.  If there was unclarity it

14     was sometimes in the questions that there was unclarity or it was not

15     clearly explained to a witness or that witnesses themselves were not

16     always fully aware of the legal status of -- not that the Chamber could

17     not finally make up its mind.  But we'll go through the list and the

18     parties certainly are invited to prepare submissions in which they

19     indicate where the relevant -- what their position is and where the

20     relevant evidence is found in relation to that status, such as letters or

21     denials or testimony of witnesses, so that we have mainly the sources

22     available for judging upon the legal status of those documents.  We'll --

23     after we have seen all that, then we may decide whether or not it would

24     be wise to have a legal expert called.  Legal experts of course --

25     Chambers are primarily tasked with establishing legal issues, but we'll

Page 8875

 1     then further consider that.

 2             MR. GROOME:  Your Honour, that's why I raised it in this fashion

 3     so that we did not go through the expense of that if the Chamber thought

 4     that would be something that would not assist it.

 5             JUDGE ORIE:  Yes, we do not know that exactly.

 6             Any other matter?

 7             MR. GROOME:  Yes, Your Honour.  Your Honour, the Prosecution at

 8     this junction of the trial has adduced most of its evidence with respect

 9     to the allegations in the indictment related to crimes within the

10     municipalities and crimes related to the Siege of Sarajevo.  The

11     Prosecution will use this upcoming adjournment to prepare bar table

12     motions related to these aspects of the case.  The Prosecution -- since I

13     anticipate these will be prepared sometime before or sometime in early

14     March, the Prosecution request that the Chamber vary its guidance and

15     receive these applications and set an appropriate period of time for the

16     Mladic Defence to respond to them.  And the Prosecution, as its practice

17     to date in this case, accepts that fairness may require a variation of

18     the standard response period and would of course defer to the Chamber's

19     determination about what would constitute a full and fair opportunity for

20     the Defence to respond.

21             JUDGE ORIE:  May I take it that the Defence first would like to

22     think about what their position is on this matter?  However, I think the

23     guidance said bar table motions at the end of the Prosecution's case and

24     you now want to split it up in specific portions.  Is that --

25             MR. GROOME:  Yes, Your Honour.

Page 8876

 1             JUDGE ORIE:  Yes, that's -- and of course the Chamber would like

 2     to know the position of Defence in relation to that matter as soon as

 3     possible, and then of course the response time may well depend also on

 4     the size of the -- of the bar table motions the Prosecution would then

 5     file.  So could you give priority to it now being tendered for Sarajevo

 6     and the municipalities and then we'll give it a follow-up after that.

 7     When do you think you could make up your mind in respect of this first

 8     question?

 9             MR. STOJANOVIC: [Interpretation] Bearing in mind that we have

10     some upcoming witnesses during this week, we kindly ask your leave to

11     have until the end of this week.

12             JUDGE ORIE:  Yes, we would like to receive your position by the

13     end of this week or even Monday after the weekend if you would prefer

14     that.

15             MR. STOJANOVIC: [Interpretation] Thank you.

16             JUDGE ORIE:  Mr. Groome.

17             MR. GROOME:  Your Honour, next with respect to a disclosure

18     matter, on the 12th of February, 2013, we discovered that a translation

19     of a Rule 66(A)(ii) item for an up coming witness could not be found on

20     the electronic disclosure suite for the Mladic case.  A further inquiry

21     on the same day revealed that the document was part of a group of 144

22     Rule 66(A)(ii) items that were supposed to have been disclosed on the

23     8th of June, 2012, in batch 22 but were not.  The non-disclosure was

24     caused by an oversight of the unit that places the disclosure materials

25     on the hard disk and the Mladic EDS.  Of the 6.756 items that were

Page 8877

 1     disclosed in batch 22, these 144 documents were missing.  All of the

 2     items bar one concern translations of original 66(A)(ii) materials that

 3     had been disclosed as intended on or before the 8th of June, 2012.  The

 4     one exception is a transcript of the testimony of Witness William Haglund

 5     in the Rutaganda case before the Rwandan Tribunal.  The 144 missing items

 6     were disclosed to the Defence on the 13th of February as batch 57.

 7             JUDGE ORIE:  Do I now understand -- it's not entirely clear to me

 8     that the documents not disclosed were translations where original

 9     materials had been disclosed or --

10             MR. GROOME:  That's correct, Your Honour.

11             JUDGE ORIE:  So it's primarily that the disclosure is only in one

12     language rather than in the two languages?

13             MR. GROOME:  With the exception of Mr. Haglund.

14             JUDGE ORIE:  Yes.

15             MR. GROOME:  Yes, that's correct.

16             JUDGE ORIE:  And most -- you were talking about the translation.

17     Now most of the documents, are they originally in B/C/S or in English?

18             MR. GROOME:  I think it's a combination of both, Your Honour.  So

19     the original was disclosed and -- and the translation was not disclosed.

20             JUDGE ORIE:  Yes.  So at least in one version the Defence has

21     been put on notice that this was 66(A)(ii) material?

22             MR. GROOME:  That's correct, Your Honour.  And just so that the

23     record is complete, in the inventory of what was disclosed, all of these

24     documents are on there and clearly identified as the documents that they

25     purport to be.

Page 8878

 1             JUDGE ORIE:  Yes.  One second.

 2             Yes, if the Defence wants to make any submissions on the matter

 3     or intend to do that at a later stage, we would hear them.

 4             MR. STOJANOVIC: [Interpretation] At a later stage in any case,

 5     Your Honours.  If I understood correctly, Mr. Haglund's statement does

 6     not exist either in the B/C/S or in the English, where the rest of the

 7     documents have only one original.

 8             JUDGE ORIE:  Well, a statement should be at least in one language

 9     otherwise it's no statement.

10             And what language is it [overlapping speakers]

11             MR. GROOME:  I don't know.  I know Mr. Haglund speaks English,

12     but I don't know -- sorry.  The original transcript is in the original

13     language.

14             JUDGE ORIE:  So the original is in English, but there -- neither

15     in English nor in B/C/S the statement has been disclosed?

16             MR. GROOME:  That's correct, Your Honour.

17             JUDGE ORIE:  Yes, that is clear.

18             Mr. Groome, any further matter?

19             MR. GROOME:  One final matter, Your Honour.  Your Honour, we will

20     after the adjournment begin to adduce some of our evidence relating to

21     the allegations regarding Srebrenica.  One of the pieces of evidence that

22     the Prosecution will use with a number of witnesses is a compilation of

23     video footage that's over an hour long, maybe even an hour and a half

24     long.  It is now identified as 65 ter 26123.  This video -- the

25     Prosecution has taken the approach of subtitling the video with English

Page 8879

 1     subtitles.  The translation of the original tape has been accepted in

 2     several other cases.  Ms. Stewart corrects me, it is about four hours

 3     long in its entirety.

 4             JUDGE ORIE:  Well, that's over one hour.

 5             MR. GROOME:  Yes.  So the -- and I don't believe it's been

 6     contested, the translations.  I know the Defence has it.  I don't know

 7     whether they have had an opportunity to evaluate, whether they contest

 8     any of the translations.  But I raise it now well in advance of us

 9     actually using it to ask the Chamber to consider how, in light of the

10     procedure we've been following with respect to the verification of

11     translations, how the Chamber would wish to proceed.

12             JUDGE ORIE:  Yes, of course the Chamber would like to be informed

13     what the Defence position is in relation to this video in order to use

14     it.  When could we hear from you, Mr. Stojanovic?

15             MR. STOJANOVIC: [Interpretation] Very briefly, Your Honours.  We

16     received a letter from Mr. McCloskey which says that they're working on

17     this.  We are definitely going to review this compilation of videotapes

18     exceeding four hours and hopefully, since we already began working on it,

19     we can complete it by the end of this week.

20             JUDGE ORIE:  Thank you.

21             Mr. Groome, what is the suggestion how to use it?  Because I

22     don't know whether I missed something.  Would you like us to look at it

23     at the beginning of the Srebrenica Defence -- Prosecution's presentation

24     of evidence or at the end or in the middle or portions with witnesses?

25     What is your suggestion?

Page 8880

 1             MR. GROOME:  The way we intend to use it, Your Honour, is ask

 2     that it be marked for identification and then use it with several

 3     witnesses that can speak to not only the authenticity but maybe to place

 4     in context some of the events depicted there.  And then at some point

 5     towards the end of our case we would formally tender the entire video --

 6             JUDGE ORIE:  Yes, we would then know what we have not yet seen

 7     through witnesses and then -- okay, so it's mainly for it to be marked

 8     for identification as well as, let's say, a bundle of video material

 9     which will be used with several witnesses?

10             MR. GROOME:  Yes, and again, Your Honour, to decide how --

11     whether the Chamber -- how to verify the subtitles.

12             JUDGE ORIE:  Yes.

13             MR. GROOME:  It may be that there's no disagreement about the

14     subtitles, but I don't know whether the Chamber would be satisfied with

15     that or would want independent verification by the CLSS at this time.

16             JUDGE ORIE:  Okay.  That's at least clear.

17             Mr. Stojanovic.

18             MR. STOJANOVIC: [Interpretation] Your Honours, maybe the best

19     solution would be to do it like that, that is to say to have the CLSS

20     verify it and then we shall express our position on this Prosecution

21     submission.

22             MR. GROOME:  Can I speak with Mr. McCloskey.  I think it has

23     already been verified.

24             JUDGE ORIE:  Yes.

25             MR. GROOME:  I think it's been carefully verified on several

Page 8881

 1     occasions.  So I guess --

 2             JUDGE ORIE:  That was the impression I gained from your

 3     submissions.  But then if the work Mr. Stojanovic thinks should be done

 4     is already done, that would only allow us to move on more efficiently.

 5     If you'd perhaps -- yes?

 6             MR. STOJANOVIC: [Interpretation] Perhaps, Your Honours, maybe you

 7     can just extend the dead-line for us to ascertain whether the translation

 8     is correct or not.

 9             JUDGE ORIE:  And you said you'd need until when?

10             MR. STOJANOVIC: [Interpretation] My colleague has just told me

11     that it was said by the end of this week, but I think it should be by the

12     end of next week, that is by the end of this month, that would be

13     precisely the 2nd of March.

14             JUDGE ORIE:  That request is granted, Mr. Stojanovic.  We would

15     like to hear you -- from you not later than the 2nd of March.

16             MR. GROOME:  Those are all the matters I have, Your Honour.

17     Thank you.

18                           [Trial Chamber confers]

19             JUDGE ORIE:  Yes, I have a few matters which could shorten my

20     court agenda list.

21             First, I would like to address on behalf of the Chamber an issue

22     related to a Defence exhibit which was admitted through Witness Sabljica.

23     The English translation of the B/C/S original version of Exhibit D184

24     does not include the first five pages.  The status of this exhibit should

25     therefore be changed to "marked for identification," and the Defence is

Page 8882

 1     instructed to tender a complete English translation of this exhibit

 2     within seven days and notifying the Chamber thereof.  And of course if it

 3     still has to be produced and suffers any delays, then the Chamber would

 4     like to be informed.

 5             I move to the next item.  On the 29th of January the Chamber has

 6     sent to the parties an e-mail, requesting that the Defence inform the

 7     Chamber by the 1st of February, 2013, when it would anticipate being in a

 8     position to file a notice pursuant to Rule 94 bis (B) to the

 9     Prosecution's notice of disclosure of expert reports of six forensic

10     expert witnesses and requesting the Prosecution's submissions, if any, on

11     this matter.  The Chamber has not as yet received an answer from the

12     Defence.

13             Mr. Stojanovic, are you able to give the information requested?

14     And if not, when do you think you could tell us --

15             MR. STOJANOVIC: [Interpretation] My colleague, Lukic, is working

16     on the submission and I expect that we shall provide a response very

17     shortly.

18             JUDGE ORIE:  That means still this week, may I take it?

19             MR. STOJANOVIC: [Interpretation] Yes, until the end of this week,

20     Your Honours.

21             JUDGE ORIE:  Then we'll hear from you later this week.  I move on

22     to documents MFI'd as D113 and D118, both in relation to Witness RM163.

23     These documents were MFI'd on the 12th and the 13th of December of 2012.

24     The Prosecution reserved its position on admission of these two exhibits

25     until after it had received more information from the Defence concerning

Page 8883

 1     the completeness and the origin of D113.  With regard to D118, the

 2     verification of the text on the cover page by the Defence is still

 3     pending.

 4             Could I hear from the Prosecution and from the Defence on any

 5     progress made in relation to D113 and D118.

 6             MR. GROOME:  Your Honour, I would need to refresh my memory about

 7     those exhibits.  If I could report to the Chamber tomorrow on that I

 8     would appreciate it.

 9             JUDGE ORIE:  Mr. Stojanovic.

10             MR. STOJANOVIC: [Interpretation] Then we shall join the

11     Prosecution in that, Your Honours.

12             JUDGE ORIE:  We'll hear from both parties tomorrow.

13             The next item relates to an e-mail which was sent to the parties

14     on the 30th of January, 2013, asking the Defence whether it had had an

15     opportunity to review Exhibit P750, that is, clarifications to the

16     amalgamated witness statement of RM055.  P750 was MFI'd on the

17     21st of January, 2013.  We have not received any response to date.  If

18     you'd like to go into the substance of the matter, we'd have to move into

19     private session.  If you can inform the Chamber without dealing with the

20     substance, we'd like to hear from you.

21             Mr. Stojanovic.

22             MR. STOJANOVIC: [Interpretation] Your Honours, document P750, we

23     reviewed it and this document was used through the witness led by my

24     colleague Lukic, and in the course of tomorrow we shall give you our

25     position whether we accept this to be admitted into evidence.

Page 8884

 1             JUDGE ORIE:  We hear from you tomorrow.

 2             Then finally the last item.  During the testimony of

 3     Witness RM055, five associated exhibits tendered by the Prosecution were

 4     deferred to be dealt with at another time - and I refer to transcript

 5     page 2767.  Now, these exhibits, and they are bearing Rule 65 ter numbers

 6     15746, 10176, 10181, 10184, and 17657, they were not MFI'd at the time.

 7     It's not entirely clear to the Chamber when and how you will follow-up

 8     with these 65 ter numbers, Mr. Groome.  Is it that you will introduce

 9     them through another witness or will you bar table them?

10             MR. GROOME:  Your Honour, I'd have to refresh my recollection as

11     to these precise exhibits, but I will check this out and get back to the

12     Chamber tomorrow.  It was my intention for this administrative hearing

13     that the Prosecution has requested to go through all these pending

14     matters in terms of the Prosecution's position --

15             JUDGE ORIE:  Yes, no, I used the opportunity that we have a few

16     minutes left -- and perhaps the best way if there are short answers to

17     some of these questions that if you would send them by an e-mail to the

18     Chamber, I will then put them on the record tomorrow and the same is true

19     for the Defence.  And we would then be able to deal with them as quickly

20     as possible.

21             MR. GROOME:  We will do that, Your Honour.

22             JUDGE ORIE:  All the answers for tomorrow, Mr. Stojanovic, just

23     in a few lines in an e-mail and then we will read them in court.

24             If there are no other matters at this moment we adjourn for the

25     day and we resume tomorrow, Tuesday, the 19th of February, Courtroom I,

Page 8885

 1     at 9.30 in the morning.

 2                           --- Whereupon the hearing adjourned at 2.01 p.m.,

 3                           to be reconvened on Tuesday, the 19th day of

 4                           February, 2013, at 9.30 a.m.