1 Friday, 19 February 2010
2 [Open session]
3 --- Upon commencing at 9.07 a.m.
4 JUDGE ORIE: Good morning to everyone.
5 Madam Registrar, would you please call the case.
6 THE REGISTRAR: Good morning, Your Honours.
7 This is case IT-03-69-T, the Prosecutor versus Jovica Stanisic
8 and Franko Simatovic.
9 JUDGE ORIE: Thank you, Madam Registrar.
10 We'll first establish that the accused are not there. We
11 discussed this yesterday. I don't think that we have received any waiver
12 forms, but since they expressed themselves clearly yesterday in court,
13 we'll proceed in their absence.
14 I'd like to continue where we left off yesterday.
15 The next item on my agenda relates to P117. There was some
16 discussion as to whether P117, photographs discussed in the statement of
17 Witness JF-007, whether that is a public document or confidential
18 document. Until now, it has been qualified as confidential, but that
19 seems to be a mistake.
20 Mr. Hoffmann.
21 MR. HOFFMANN: Your Honour, that's correct. We submit it could
22 be made public. It's a photo collection, and there's no reference to the
23 witness or nothing else that would identify the witness.
24 JUDGE ORIE: P117 will be a public document. The Chamber decides
25 that it will change its status from confidential into public.
1 Then we had a question about the status, that is, confidential or
2 public, also in relation to documents which were admitted through
3 Witness JF-006. I think we said in court that we didn't have to discuss
4 the matter in court, but that the parties would discuss among themselves
5 to what extent these documents could be made public. We have not
6 received any response from the parties in this respect, from my
8 I don't know who to address. Mr. Hoffmann.
9 MR. HOFFMANN: Your Honours, I wasn't present at that session,
10 myself, but my information from my team is that Exhibits P106, P107, and
11 P108 could, in fact, be changed to public status.
12 JUDGE ORIE: Yes. Is this the outcome of a consultation with the
13 Defence, because if I read what I said, that I would suggest that you
14 discuss with the Defence whether there are any without in any way making
15 the protective measures ineffective could become public. Did you express
16 a joint position, or was it the OTP position?
17 MR. HOFFMANN: I'm afraid at this point that's only the OTP
18 position. I think, if I recollect, the discussion was about one of the
19 Defence exhibits, and in the course of that discussion, just to be on the
20 safe side, the other documents were kept under seal. But that discussion
21 was mainly about Exhibit D7, if I recall.
22 JUDGE ORIE: The Defence, first in relation to the P exhibits and
23 then in relation to the D exhibit just mentioned.
24 Mr. Jordash.
25 MR. JORDASH: Your Honours, in relation to the P exhibits, then
1 we would simply go along with the Prosecution's position, they having
2 checked the protective measures issue.
3 JUDGE ORIE: You say it's their witness, so they should be
4 primarily concerned about any protection.
5 MR. JORDASH: Yes, Your Honour.
6 May I just take a moment for the Exhibit D7 just to check that?
7 JUDGE ORIE: Yes, D7 will -- it might be that we have a short
8 break at a later stage and that we deal with any matter which is still
10 Mr. Hoffmann.
11 MR. HOFFMANN: I would ask that we quickly go into private
12 session for this one.
13 JUDGE ORIE: We move into private session.
14 [Private session]
11 Page 3677 redacted. Private session.
9 [Open session]
10 THE REGISTRAR: We are in open session, Your Honours.
11 JUDGE ORIE: Yes. And then I would repeat in open session that a
12 number has been assigned to the unredacted statement of
13 Witness Kozarcanin, P259, which is admitted under seal.
14 I move on to a few outstanding requests for a change of page
15 limits and requests for reply. I have to take you back in history,
16 because these matters are pending since 2007, at a time, I think, that
17 none of us was yet on this Chamber.
18 For transparency, the Chamber still needs to decide on two
19 outstanding requests, both the -- and that's the first one, 9th of July,
20 2007, Stanisic Defence request for leave to exceed the page limit in its
21 response to Prosecution motions for admission of written evidence,
22 pursuant to Rule 92 ter, and - and I now come to the second - the 16th of
23 July, 2007, Prosecution request for leave to reply to Defence responses
24 to Prosecution motions pursuant to Rule 92 ter. Both these requests are
1 The next item. The Chamber would like to put on the record some
2 informal communications which should be on the record.
3 The Chamber hereby puts on the record that on the 14th of July,
4 2009, the Chamber informally denied a Prosecution request for leave to
5 reply to the Stanisic Defence response to Prosecution motion for
6 admission of written evidence of Witness C-058.
7 I also put on the record that on the 18th of December, 2009
8 Chamber informally indicated that the reasons underlying the objections
9 raised by the Stanisic Defence in its Defence response to Prosecution
10 motion for admission of written evidence of Witness JF-005, pursuant to
11 Rule 92 ter, were considered to be insufficient to justify a denial for
12 the Prosecution to present Witness JF-005 testimony pursuant to
13 Rule 92 ter. So, consequently, the Chamber denied the Prosecution's
14 request for leave to reply.
15 The next item on my agenda deals with the e-mail that was
16 presented by Witness JF-005.
17 I would like to put on the record that the parties have been
18 provided with the e-mail correspondence of Witness JF-005 on which the
19 name and any identifying information of the witness's friend has been
20 redacted. I also inform you that the Chamber has no intention to further
21 follow up on this matter proprio motu. I take it that you still are
22 aware of this, the witness sought for some material to be sent to him,
23 material which finally was already available to the parties.
24 I'd like to move for the next item into private session.
25 [Private session]
11 Pages 3680-3681 redacted. Private session.
9 [Open session]
10 THE REGISTRAR: We're in open session, Your Honours.
11 JUDGE ORIE: Mr. Weber, you had not identified yourself, I think,
12 as being present in court, whereas I should have done it.
13 MR. WEBER: I apologise, Your Honour. Adam Weber on behalf of
14 the Prosecution.
15 JUDGE ORIE: Yes, thank you.
16 We are now back in open session, and the next item on my agenda
17 is the letter that Mr. Stanisic has sent -- or at least the letter dates
18 from the 7th of January and was addressed to the Chamber.
19 First of all, the Chamber has followed up with the Registry on
20 the matters contained in Mr. Stanisic's letter to the Chamber regarding
21 his health situation. Both the memo of the Chamber and Dr. Eekhof's
22 answer will be filed. And as matters stand now, the Chamber sees no
23 reason not to be satisfied by the explanations given by Dr. Eekhof. But,
24 of course, since you may not be fully aware of it, it's as matters stand
25 now, and as far as the Chamber's aware.
1 In addition to the specific subject matter of the letter, there
2 is a general question of whether sending a letter through e-mail to
3 Chamber staff is an appropriate way to approach the Chamber, and we'd
4 like to inform the parties that generally we would expect counsel to put
5 any communication from the accused into a motion or a request form and
6 then file it with the Registry.
7 The Chamber would also like to remind counsel and the accused,
8 and you'll pass on this message, I take it, about the Chamber's specific
9 judicial competencies, as opposed to the Registry's competencies, in
10 relation to treatment and care of the accused.
11 In exceptional circumstances, an accused could also directly
12 address the Chamber without going through counsel. However, this could
13 then also be done in court, rather than by way of sending a letter; of
14 course, unless there's some very specific conflict which an accused would
15 like to raise without counsel to know, which is really something which
16 the Chamber would not expect at this moment to arise at all. But I can't
17 say that it -- in the history of this institution and our sister
18 institution, that such matters never happens, but that's really --
19 addressing the Chamber is already exceptional; this should be done in
20 court, and only in extremely exceptional circumstances, and not a direct
21 approach in another way could be considered.
22 Are there any questions in relation to this item? There are not.
23 Then I move on to the next item, which is guidance by the
24 Chamber, guidance on the Prosecution's first motion for admission of
25 exhibits from the Bar table. I hope that the booths have been provided
1 with hard copies.
2 On the 23rd of November, 2009 --
3 [Trial Chamber and legal officer confer]
4 THE INTERPRETER: The interpreters do have the hard copies. We
5 apologise. The interpreters were given the hard copies yesterday,
6 Your Honour.
7 JUDGE ORIE: Yes, okay. Well, if I would say something was given
8 to me yesterday, as you just told me, I would still have to consider
9 whether I lost it overnight. But apparently you will have an opportunity
10 to distribute the hard copies. I'll move on, meanwhile, with other
12 I skipped two items. We'll come back to them soon.
13 The next item on my agenda deals with the assigning of Defence
14 exhibit numbers.
15 The Simatovic Defence has inquired whether Defence exhibits
16 should be given 1D or 2D rather than just D numbers. The Chamber has
17 considered this request, but could not see why the requested system would
18 be any better than the one so far used by this Chamber. Moreover, it is
19 always visible on e-court whether a certain document was tendered by the
20 Stanisic or by the Simatovic Defence. And, accordingly, this request is
21 denied, and we will continue with the system we started with, that is,
22 that the exhibit number expresses whether it's a P or a D exhibit that
23 does not make any distinction between 1D or 2D.
24 Mr. Bakrac.
25 MR. BAKRAC: [Interpretation] Your Honours, thank you, and I
1 apologise for rising. I understand your decision.
2 My question only is whether we may retain, pending a D number --
3 can we actually still use the 2D prefix until when we actually propose a
4 document for admission as an exhibit, pending its assignment of a number
5 which would have a D prefix?
6 JUDGE ORIE: Mr. Bakrac, you're referring to what I would call
7 the 65 ter numbers, what you have there. There's no problem in using
8 those numbers, as long as it is clear to the Registrar what you refer to.
9 But once we decide on admission and once exhibit numbers, which is
10 different from 65 ter numbers, once exhibit numbers will be assigned,
11 we'll use the system of just D and nothing in addition to that
12 identifying the party that tenders the document.
13 Then I think I could revisit the guidance on the Prosecution's
14 first motion for admission of exhibits from the Bar table.
15 On the 23rd of November, 2009, the Prosecution filed its motion
16 seeking admission of 336 exhibits from the Bar table. On the 4th of
17 December, 2009, the Simatovic Defence partly responded to the motion and
18 asked for additional time to respond to the remaining part. On the 8th
19 of December, 2009, the Stanisic Defence responded to the motion.
20 The present Bar table motion was filed at an early stage of the
21 proceedings, and since then the Prosecution has tendered into evidence
22 several of the documents, being part of the motion, through its
23 witnesses. In this respect, the Chamber urges the parties to adopt an
24 approach whereby documents are tendered through witnesses, to the extent
25 possible. In light of this, the Chamber will not decide on the motion at
1 this early stage of the proceedings, with the expectation that the
2 documents can be more appropriately and efficiently be tendered through
3 witnesses to be called during the Prosecution's case. For the sake of
4 efficiency, the Chamber further considers that the Simatovic Defence is
5 not expected to file a response to the motion at this stage of the
7 At the same time, if, at a later stage of the proceedings, the
8 parties consider a Bar table motion to be appropriate, the parties are
9 encouraged to file it in the form of a joint submission. Accordingly,
10 the tendering party should file a table containing a short description of
11 each exhibit, as well as its relevance and probative value if not
12 immediately obvious from the description already. In case of bulky
13 exhibits with particularly relevant portions, a reference to those
14 portions is needed.
15 In the joint submission, as well as in the said table of
16 exhibits, the other parties may also provide any comments and/or
17 objections they may have with regard to each tendered exhibit.
18 And this concludes the Chamber's guidance on Bar table
20 I add to this the following: When I said if at a later stage of
21 the proceedings the parties should consider a Bar table motion to be
22 appropriate, of course, I primarily was referring to later stages where
23 other documents may have already been admitted. Of course, the Chamber
24 was concerned that we receive a Bar table motion and then find at least a
25 number of those documents already to be admitted through witnesses, so
1 those documents should not have been Bar-tabled, but should have been
2 introduced through witnesses. Now, there may well be a number of
3 exhibits which cannot appropriately be introduced through witnesses, and
4 then, of course, if that could be established most likely at a later
5 stage, we could receive Bar table motions in the format as I just set
7 Sometimes we find ourselves in a bit of a mixed situation. From
8 other cases, I have the experience that sometimes it makes sense to
9 introduce one or two documents through a witness and, and then if there
10 is a series of similar documents, 10 or 20, that not to go through each
11 and every of those documents and then to submit those in a Bar table
12 submission and say -- and then this most likely will have been discussed
13 in court, I have another 18, or another 25, or another 40 of these
14 documents, and we'd like to Bar-table them. That, of course, would be --
15 if I said "at a later stage," we always have to consider in what
16 situation we find ourselves. And for this first Bar table submission the
17 Chamber was really concerned that we were offered quite a lot of
18 documents which, I would say, almost in a natural way were later
19 introduced through witnesses.
20 The Chamber, therefore, will be very -- will always critically
21 assess the situation in which documents are tendered in a Bar table
22 motion and see whether it's appropriately done, both in terms of time and
23 in terms of the subject matter involved.
24 Mr. Groome.
25 MR. GROOME: Just to explain some of the rationale underlying the
1 written motion, it wasn't simply about choosing between doing it in
2 written form or with the witness. It seemed to the Prosecution that it
3 was only a fair and better efficient use of court time for the Chamber to
4 have the documents underlying the evidence so that the Chamber could
5 study those documents, because I would think that the Chamber's decision
6 on admissibility may very well depend on the Chamber's assessment of the
7 request of the correspondence that was received describing the provenance
8 of the document, so the Prosecution considered that the better way to
9 proceed was to put that before the Chamber, let the Chamber study those
10 documents and come to its own view, not only with respect to the
11 admissibility of a document but then ultimately to its weight.
12 Now, I accept what the Chamber said with respect to guidance, and
13 I'm thinking is there another way that we can efficiently make this
14 correspondence available to the Chamber so that it can refer to it, so
15 that when we do Bar-table a motion or Bar-table an exhibit into court,
16 the Chamber has some idea about the background of how that document came
17 into the possession of the Prosecution.
18 JUDGE ORIE: Yes. The guidance also included a joint filing,
19 which means that the Chamber, if looking at background or whatever, that
20 the Chamber would not do that on the basis of the filing by one party
21 only, but that we -- we are concerned about being flooded by hundreds and
22 hundreds of documents of which we would not really know what to look at,
23 precisely, what is the reason why it is presented in this way, and not
24 knowing what the other party thinks about admissibility. Therefore,
25 again, the Chamber is not opposed to appropriate Bar-table filings, but
1 then would like to receive all the relevant information, and also would
2 still prefer to receive evidence, even documentary evidence, primarily
3 through witnesses. But as I explained before, it may well be that in
4 this context that still it would be appropriate to Bar-table certain
5 documents, but then we have a clear context, we know what you want, we
6 know what the Defence response to it is, and then we can consider whether
7 or not it is appropriate to introduce the documents in this way. And
8 secondly, of course, we have already an indication as to whether there
9 are any objections against admission.
10 MR. GROOME: Your Honour, would the Court find it acceptance if
11 we tendered as an exhibit -- as a single exhibit all of underlying
12 documents with respect to documents that we intend to introduce
13 through -- from the Bar table during the course of the trial? This way,
14 the advocate who is tendering the exhibit could refer the Chamber to
15 P100, for example, and page 3 of that for the underlying documentation
16 that supports the authenticity of the document at issue in the particular
18 JUDGE ORIE: Yes. If we are talking about authenticity, I can
19 imagine that you say that the whole story of authenticity, we shouldn't
20 raise that in court if there's no need to do that. But then, of course,
21 if you want to introduce any underlying material -- first of all, of
22 course, most important is whether you have discussed with the Defence
23 whether there's any authenticity issue. And if there is an authenticity
24 issue, then it may well be that we say, This is the document we'll use in
25 court, and for purposes of establishing authenticity these are underlying
1 documents, but then where to look at exactly how you got it. These
2 sometimes are lengthy documents, there's whole lists of what is sent.
3 Look at paragraph 3, number so-and-so, there you find the document. And
4 then we'd also hear from the Defence whether there's any challenge to the
5 content of that material, so that we are better able to decide.
6 Perhaps if it would assist the parties, from other cases, of
7 course, we have examples of how these Bar-table submissions were made.
8 If the parties would like to be informed about how this practice
9 developed, the Chamber staff will certainly be available to give further
11 Then the Chamber still owes the parties the reasons for its
12 decision to grant protective measures for Witness C-1118. The decision
13 was delivered on the 15th of July, 2009, and the reasons will now be
15 On the 14th of July, 2009, the Prosecution requested that
16 Witness C-1118 be granted the protective measures of use of a pseudonym
17 and testimony with face and voice distortion.
18 On the 15th of July, 2009, before commencement of his testimony,
19 the Chamber and the parties questioned the witness on his reasons for
20 requesting protective measures. This can be found on transcript pages
21 1950 through 1957.
22 On the same day, the Chamber decided to grant protective measures
23 for the witness. The Chamber decided to go beyond what was requested by
24 the Prosecution and grant the use of a pseudonym and testimony in closed
25 session. I refer to transcript pages 1959 through 1961. And the public
1 is hereby informed of that decision.
2 As the Chamber has set out in previous decisions on protective
3 measures, the party seeking protective measures for a witness must
4 demonstrate an objectively-grounded risk to the security or welfare of
5 the witness, or the witness's family, should it become known that the
6 witness has given evidence before the Tribunal. This standard may be
7 satisfied by showing that a threat was made against the witness or the
8 witness's family. It may also be meant by demonstrating a combination of
9 the following three factors:
10 1. The witness's testimony may antagonise persons who reside in
11 a specific territory.
12 2. The witness, or his or her family, live or work in that
13 territory, have property in that territory, or have concrete plans to
14 return to live in that territory.
15 3. There exists an unstable security situation in that territory
16 which is particularly unfavorable to witnesses who appear before the
18 The Chamber adds to this that assessing whether or not to grant
19 protective measures involves a delicate balance between the right of the
20 accused to a public trial, on the one hand, and the interests and need
21 for protection and privacy for victims or witnesses, on the other. In
22 this respect, the Chamber is mindful that protective measures do not
23 negatively affect an accused's other fair-trial rights, such as the right
24 to examine witnesses against him.
25 Even though granting protective measures is and should be the
1 exception to the rule of a public trial, the threshold for when
2 protective measures should be granted cannot be set too high. For
3 example, to exclude persons who have not experienced actual threats or
4 harassment would defy the purpose of the measures; namely, the protection
5 from risks that might occur as a result of the testimony. The Chamber
6 must, therefore, make a risk assessment, and inherent in such an
7 assessment is applying a certain level of caution and erring on the safe
9 Witness C-1118 is a Croatian Serb living in the same
10 Serb-majority village in Croatia
11 in the present case. His testimony concerns events occurring in the area
12 of his village and involving many local Serbs. The witness stated that
13 some of the people he would testify about currently live in his village.
14 The witness believed that should it become known that he had testified,
15 he would receive threats from his neighbours, even though he had not
16 experienced any problems with them until that point in time. The witness
17 added that there is a tension between Croats and Serbs in the area he
18 lives in and that a large percentage of the local police are Serbs and
19 were policemen already during the conflict.
20 For these reasons, the Chamber decided to grant protective
21 measures for Witness C-1118.
22 The Chamber considered that in view of the subject matter of the
23 witness's testimony, the protective measures requested by the
24 Prosecution, namely, pseudonym and face and voice distortion, would not
25 guarantee the witness's security. This was also acknowledged by the
1 Prosecution and the Simatovic Defence, while the Stanisic Defence did not
2 take a position on this matter. This can be found on transcript
3 page 1960. Therefore, the Chamber decided, pursuant to Article 20 of the
4 Tribunal Statute, and Rule 75 of the Tribunal's Rules, that
5 Witness C-1118 should be referred to by his pseudonym in all public
6 proceedings and filings, and that he should testify with the protective
7 measures of closed session.
8 And this concludes the reasons for the Chamber's decision.
9 Some of the language used in the reasons for these protective
10 measures may sound quite familiar to the parties by now, because the
11 criteria applied by the Chamber are repeated in many decisions. The
12 Chamber is considering, in future decisions, to make a brief reference to
13 earlier decisions by perhaps pointing at two or three elements or the
14 elements which we usually apply, and only give the full set of reasons if
15 there is any deviation in this respect, which will save some time in
17 I would like to move on to a matter in relation to Witness Tihic.
18 The Prosecution has provided an informal list - I think it was on
19 the 3rd of February - of the previous testimony and/or statements to be
20 admitted pursuant to Rule 92 ter. In item 9, reference is made to
21 transcript of previous testimony in the Simic case. The number of that
22 case is mentioned, and then the transcript pages are referred to as
23 T-1495 up to and including T-1522.
24 In the fourth column, which is under the heading "Closed
25 Session/Under Seal," we find "T-1516, line 16, to T-1522, line 30." The
1 Chamber was confused by this way of presenting the evidence, especially
2 since what was up-loaded in e-court was T-1495 up to and including
3 T-1522, but with the lines I just mentioned, "Closed Session," being
4 redacted. If it is indicated that those pages are part of the testimony
5 which is submitted under Rule 92 ter, those pages are part of it, whether
6 in closed session or not. I mean, if it's relevant evidence, closed
7 session or not, that maybe has consequences for public or non-public
8 versions, but the Chamber should not be confronted with redacted
9 portions. Therefore, it was confusing. What apparently was intended is,
10 as a matter of fact, to exclude those redacted portions, although they
11 were included in the description of the testimony which was tendered into
13 Now, this may not have great effect on the outcome, because the
14 Chamber had the possibility in checking what was redacted, because the
15 Chamber, if need be - and we'll not use that for any inappropriate
16 reason -- the Chamber has the possibility of checking evidence even in
17 closed session in the other cases. Again, we would not do that unless
18 there was a good reason. Here, we did, and we found, as a matter of
19 fact, that those five pages are dealing exclusively with procedural
20 matters. So, first of all, they should not have been tended as evidence,
21 because it has no probative value whatsoever; it was procedural stuff,
22 rather than evidence. That's one. Second, it should not have been
23 included in the testimony which was tendered, because no reason for us to
24 read pages and pages of procedural matters. And, third, it should not
25 have been redacted. The Chamber wants to receive any evidence unredacted
1 for us. I mean, for the public, it may be different.
2 This was a rather confusing thing. It took us a while to find
3 out what exactly happened. Again, for the outcome, it's not that
4 important, so the Chamber is not seeking at this moment any remedy to
5 that, but wants to address the issue, because if large documents,
6 transcripts of testimony, are tendered, we should be very precise in what
7 we really need and what we do not need. I'll come back to that at a -- I
8 would say at a later stage, but this was an example. I'll come back to
9 that right away.
10 And I'm now talking in more general terms about voluminous 92 ter
12 Through Witness Tihic, the Prosecution tendered very voluminous
13 prior testimony. This was further discussed in court on the 4th of
14 February, 2010. In relation to Witness Tihic's previous testimony,
15 before taking a final decision on admission into evidence of P176 and
16 P177 - we, by the way, just dealt with Exhibit P176 - the Chamber
17 strongly urges the parties to come to an agreement to reduce the size of
18 the tendered documents by focusing on core issues as well as contextual
20 For example, if a curriculum vitae appears both in a statement
21 and is extensively discussed in prior testimony, the Chamber is not
22 assisted by such repetitious tendering. Similarly, many pages from prior
23 testimony may contain less relevant aspects for this case and should be
24 excluded from any tendering.
25 The parties are hereby instructed to keep this guidance in mind,
1 and more specifically for P176 and P177, are instructed to submit reduced
2 versions by the 15th of March, 2010.
3 For the next item, I'd like to move into private session.
4 [Private session]
4 [Open session]
5 THE REGISTRAR: We are in open session, Your Honours.
6 JUDGE ORIE: Thank you, Madam Registrar.
7 The next item is about the -- it's P164.
8 On the 26th of January, Mr. Groome, the Chamber noted that the
9 document was redacted; that is, the biography of Milan Ninkovic. The
10 Chamber inquired into the redactions. Especially on the third page,
11 there is a redaction. You, at that moment, thought that you would have
12 received the document with those redactions, but you said you would check
13 on that and report back to the Chamber in a few minutes. Within the next
14 few minutes of the transcript, we could not find anything, but the
15 Chamber would like to give you the opportunity to report the result of
16 your verification.
17 MR. HOFFMANN: Thank you, Your Honour.
18 Yes, indeed, we have checked this document again, and it's true
19 that we have received it as it was tendered, that is, with those
20 redactions. We have also not found any unredacted version of the same
21 document. Also, there is -- I think on the document you can see a web
22 site reference, which is actually not the public web site, so we're not
23 able at this point in time to find any unredacted version. So we have
24 used the document as we have it. That's all we can say at this point.
25 JUDGE ORIE: That's fine. But do you have a general explanation
1 on the reasons for redactions of any material received from SFOR?
2 Because if you say, Well, that's how we received it, so you have to do
3 with that, then, of course, we would know what other criteria applied
4 when redacting documents.
5 MR. HOFFMANN: The letter that we have that indicates when and
6 how we got this document does not refer to the criteria applied by SFOR
7 when redacting those statements -- or that document. It's our
8 understanding that when those documents are provided, they are
9 de-classified, and during that process they do some redactions, but we
10 have no record of what criteria SFOR applied when applying those
12 [Trial Chamber confers]
13 JUDGE ORIE: Mr. Hoffmann, the Chamber is not used to assess the
14 probative value of documents which are redacted by others for unknown
15 reasons. Therefore, the Prosecution is invited to further inquire into
16 the reasons perhaps of redactions, in general, but more specifically this
17 document. I mean, it's not one name or something of the kind; it's a
18 whole paragraph which is redacted. So, therefore, since the Chamber
19 would really like to be able to not form its opinion and render judgement
20 on the basis of selection made by others for unknown reasons, the
21 Prosecution is invited to follow up on this redaction. And perhaps, in
22 that context, of redactions in a more general way with SFOR.
23 MR. HOFFMANN: We will certainly try our best, Your Honours.
24 Thank you.
25 JUDGE ORIE: Yes.
1 [Trial Chamber and legal officer confer]
2 JUDGE ORIE: These were the items, apart from the MFI list, which
3 I would like to deal with now. Not all documents which are MFI'd are yet
4 ready to be given a follow-up, but some of them are.
5 The first one is P18, which is a BBC interview with
6 Vojislav Seselj. Very few parts of this video were shown, and they were
7 used with the witness to identify Mr. Seselj. Now, a considerable part
8 of the document seems like perhaps to be Bar-tabled, but having looked at
9 only small portions to identify Mr. Seselj, the Chamber would like to
10 hear from the Prosecution whether you would at this point in time want to
11 tender a reduced version. Just to get in a whole video and asking a
12 witness, Is this Mr. Seselj, that's not a proper way of presenting
13 evidence. Therefore, the Chamber would like to hear from you, how you
14 would like to deal with P18.
15 MR. HOFFMANN: Certainly, Your Honour.
16 I think the video at the time was, in fact, tendered in addition
17 to the three clips that were played, from the Bar table. It is still our
18 submission that the Chamber should have in front of it the whole video.
19 I think there are only a very few parts in the beginning that we
20 discussed as potentially to be excluded that deal with the biography of
21 Mr. Vojislav Seselj. The clips played were not only played to identify
22 Vojislav Seselj, and I think on the record it is clear that there is no
23 dispute between the parties that this video is authentic, that it is
24 Mr. Seselj giving an interview in March 1995 to the BBC, but the
25 Witness Savic at the time also made his own comments and testified to
1 those clips and what was said on the clips. And the Prosecution
2 certainly intends to use other parts of this video with upcoming
3 witnesses, which is why we submit it would be easier for the reference if
4 you have the video, as such, in evidence as one exhibit with the full
5 transcripts, so when we come back to certain parts of it with other
6 witnesses, the context is still clear and we don't end up with, let's
7 say, maybe 10 or 20 exhibits from the same one video.
8 At the time when this was discussed in July last year, the
9 parties were invited to see if there's an agreement about which portions
10 could be admitted or should be admitted. From those discussions and the
11 follow-up correspondence, it is clear that there is no dispute about that
12 the three clips should be tendered into evidence. We had an indication
13 from the Stanisic Defence that they would agree to larger portions of the
14 video, indicated by certain pages of the transcript, but the Simatovic
15 Defence at the time finally responded that they would only agree to the
16 admission of the three clips. So in that respect, we have to respond
17 that there is no agreement on any other admission, apart from the three
18 clips. But we would still tender the video, as such, from the Bar table
19 for the reasons just given.
20 JUDGE ORIE: Yes. Now you say, Well, it's a bit of a mixed
21 approach, apparently, because you say, We tender it, rather not to cut it
22 into pieces, so that if we deal with other parts of the video with future
23 witnesses then we would have to constantly monitor what now of this whole
24 video is dealt with through other witnesses and what is not. You're
25 anticipating on witnesses which are still to be called and still to
1 appear before this Tribunal.
2 MR. HOFFMANN: If I may add, Your Honour, we would submit that
3 it's basically the same approach that was taken with the Kula Camp video,
4 Exhibit P61, where initially short clips were played. There was no
5 dispute between the parties about the authenticity, no dispute about the
6 general relevance of it. Of course, there is different interpretation of
7 the video, but the Chamber admitted then the whole video as one exhibit.
8 And we have used this exhibit now with different witnesses, and we
9 haven't had the need to then tender portions and go through that process,
10 but we simply just played different clips from the P61. And we would
11 submit that would be, in our view, the best approach with this video as
13 JUDGE ORIE: Yes. I can imagine that the concern of the Defence
14 would be what finally remains as not ever being played and not being
15 dealt with by any witness.
16 Could I hear from the Defence teams.
17 Mr. Jordash.
18 MR. JORDASH: At the time the video was played and shown to a
19 particular witness, there was a very discreet part of the video which the
20 witness was asked to comment on. Your Honours then issued a directive
21 indicating that exhibits which are put to witnesses and tendered should
22 be relevant to that witness's testimony. And in light of that directive,
23 we indicated and the Simatovic team indicated to the Prosecution what we
24 considered to be relevant from that video. And for the Simatovic team,
25 it was the three clips. We, in the Stanisic team, went a bit wider than
1 that, but, nonetheless, there was a general agreement about what was
2 relevant. And what was not relevant was a good 8/10ths of that video,
3 with not explanation as to its probative value or relevance to the case,
4 and that's what we object to and that's what our present position is in
5 relation to that video. It's very different to the Kula video, which the
6 relevance is clear. There's an award ceremony indicating a unit with
7 various remarks being made, and this case is going to be about whether
8 those remarks were accurate and can be relied upon or whether that video,
9 as a whole, corroborates the Prosecution case, as a whole. That is not
10 the case with this video, the Seselj video. Mr. Seselj speaks widely and
11 flamboyantly about a number of subjects which don't have immediate
12 relevance to this case, we submit. Perhaps the Prosecution may in the
13 future want to indicate that those areas are relevant, but so far through
14 this witness they haven't indicated it, and they haven't indicated it
15 through the Bar-table motion.
16 And that's our position, Your Honour.
17 JUDGE ORIE: Thank you. The Simatovic Defence, please.
18 MR. BAKRAC: [Interpretation] Your Honours, we fully agree with
19 what Mr. Jordash our learned colleague has said. There is nothing that
20 we would wish to add.
21 JUDGE ORIE: Thank you. The Chamber will consider the matter.
22 I move on to, not entirely unrelated but perhaps less contested,
23 P21. That is a B-92 video-clip. The original up-loaded version had four
24 excerpts, but only two of them are tendered. There were no objections
25 against the two clips to be admitted into evidence. Has now the version
1 which only two clips been up-loaded? Because if that's the case, we
2 could then decide to admit the two clips tendered and get rid of the
3 pollution, to say so.
4 MR. HOFFMANN: Your Honours, it's my understanding that that was
5 done. But if we may just, in light of the time, just double-check over
6 the break. If there is one, then we'll come back to you after the break.
7 JUDGE ORIE: Please double-check that over the break.
8 Then I move on to P107. P107 is MFI'd under seal. I think that,
9 nevertheless, we could deal with the matter in open session. But the
10 parties are hereby informed not to say anything about this document which
11 would make the protective measures ineffective.
12 The issue being, in relation to P107, that the authenticity and
13 the provenance of the document were questioned by the Simatovic and the
14 Stanisic Defence, the OTP then provided further information as to the way
15 in which this document, which is an official note, was obtained, and
16 stated that it could provide the Defence with underlying documentation.
17 I then said that we would further hear from the Defence, whether or not
18 the disclosure of these underlying documents would remedy the objections
19 raised by the Defence. The Chamber would like to check with the Defence
20 whether the objections still stand after the discussions, any with the
22 Mr. Jordash.
23 MR. JORDASH: May I just quickly discuss with the Simatovic team.
24 I think they led the objection, so I just want to --
25 JUDGE ORIE: Yes. What about doing that during the break we'll
1 have anyhow, and then we'll hear from you after the break?
2 MR. JORDASH: Thank you, yes.
3 JUDGE ORIE: Then I move on to P134, which is a video which was
4 introduced through Witness B-1108.
5 There were objections by the Stanisic Defence mainly on the basis
6 that the prisoner speaking in this video refers to special police or
7 special forces from Belgrade
8 objections, and suggested to the parties that all the contested
9 references be redacted. And, meanwhile, the video and the transcript
10 were MFI
11 Now, the Chamber does understand that redactions were agreed upon
12 by the parties and that they were up-loaded. If that's the case, there
13 seems to be no further objections against admission. And then, of
14 course, the redactions to be understood as the video will not change, I
15 take it, but that the Chamber, as far as the text spoken on that video,
16 will exclusively pay attention to the portions of the text transcribed.
17 From what I remember, it was someone speaking German, from what I
18 remember. But that would mean that if we would follow this, that
19 although the video is admitted into evidence, that we would ignore any
20 spoken text which is left out -- is redacted in the transcript.
21 I hear no objections with this approach. Under those
22 circumstances, P134, a video with a redacted transcript, is admitted into
24 I suggest that we first have a break. It may be that some
25 matters arise after the break which would require another very brief
1 pause after that. We'll have a break, and we'll resume at five minutes
2 to 11.00.
3 --- Recess taken at 10.32 a.m.
4 --- On resuming at 11.06 a.m.
5 JUDGE ORIE: Before we continue, I'd like to revisit a few
6 matters which were left over before the break.
7 The first one is D7, P106, P107, P108, the Defence was invited to
8 look at it, and not just as a matter of courtesy, but to really look into
9 the matter, whether they could be made public.
10 MR. JORDASH: We come to the same conclusion, Your Honour.
11 JUDGE ORIE: Same conclusion.
12 The Simatovic Defence.
13 MR. PETROVIC: [Interpretation] We join Mr. Jordash's stand.
14 JUDGE ORIE: Yes. Then under those circumstances, D7, P106,
15 P107, and P108 are made public documents. Their status changes from
16 confidential into public.
17 If you would give me one second.
18 From before the break, we have still pending P18, which is the
19 video. The Chamber would like to invite the Prosecution to make a
20 submission similar to what we discussed before the break, the Bar-table
21 submission, that is, to set out specifically the non-played portions,
22 what the relevance is subject by subject; then to present that to the
23 Defence, that the Defence then can then make its comments in relation to
24 relevance, or probative value, or whatever comments they have. And under
25 the present circumstances, I can imagine that the Prosecution would, in
1 respect of every portion of it, would also indicate with which witness
2 they intend to further deal with the matter. Then we can see -- that
3 also gives an opportunity to the Defence to see whether there is a risk
4 that we have large portions of a video in evidence where we'll never hear
5 any further evidence on it, or whether we find clues in the 65 ter
6 summaries of those witnesses or in their statements which would give them
7 confidence that nothing is lost at this moment in admitting the whole of
8 the video, because it has practical advantages. It's clear that if we
9 have 17 separate clips of a video in evidence, that is not very practical
10 to work with. But a fair opportunity should be given to the Defence to
11 express themselves in more detail, once the Prosecution has explained, in
12 similar detail, what they expect to do with that or what could already
13 have been done with the non-played part of the video.
14 Therefore, it's not extremely urgent. How much time would you
15 require to make such a submission? And then, of course -- I would say
16 how much time would you need to prepare the submission up to it being
17 available to the Defence to give their comments on it?
18 MR. HOFFMANN: Your Honours, we would aim at the end of next week
19 to provide it to the Defence.
20 JUDGE ORIE: Could I then expect the Defence teams to add their
21 comments? Again, it's not full litigation, it's not full submissions,
22 but just, We object because of this, or, We object because of that, or
23 reference is made to a witness who doesn't appear on the 65 ter list,
24 whatever, but short, to the point, so that we know more or less what
25 we're talking about. Ten days after you receive that, would that do?
1 Mr. Jordash is nodding, Yes. I see the Simatovic Defence --
2 well, if you would say, I would need two weeks or three weeks, we would
3 consider that.
4 MR. BAKRAC: [Interpretation] Your Honours, I would appreciate it
5 if you could grant us two weeks for the Simatovic Defence.
6 JUDGE ORIE: Two weeks after you have received the initial table
7 or the initial spreadsheet indicating what portions, what is the
8 relevance, perhaps what witnesses to be -- then two weeks for the Defence
9 to add their comments to what then could become a joint submission.
10 P21, you would verify whether the new video had been up-loaded
11 with only the two excerpts you were tendering?
12 MR. HOFFMANN: Yes, Your Honour, that has been done, so that the
13 transcripts and the video with those two clips only are up-loaded in
15 JUDGE ORIE: Yes. And the number known to the Registrar? Same
16 number as earlier?
17 MR. HOFFMANN: Yes, the same number.
18 JUDGE ORIE: Same number.
19 Madam Registrar, hereby leave is granted to replace the earlier
20 version of P21 to a new version of P21 as up-loaded by the Prosecution,
21 and P21 is admitted into evidence.
22 In relation to P107, Mr. Jordash, you asked to be given an
23 opportunity to consult with the Simatovic Defence. Could I hear from --
24 I see Mr. Petrovic is on his feet.
25 Mr. Petrovic.
1 MR. PETROVIC: [Interpretation] Your Honours, I will try to
2 explain our joint position. As initiators of this objection, we stand
3 by, regarding P27, in terms of authenticity. You probably have this
4 document in front of you. It's a document that is unsigned, and the
5 place where the signature should be --
6 JUDGE ORIE: Let's have a look at the document.
7 Could we have P27 on our screen.
8 MR. HOFFMANN: Your Honour, I think there's maybe a typo. I
9 thought we were talking about P107.
10 JUDGE ORIE: No, it was not a typo. It was my mistake. It is
11 P107 which we'd like to have on our screens.
12 MR. PETROVIC: [Interpretation] Your Honours, if you allow us, we
13 will see the English version in a moment, I hope, but I think it is
14 already clear by just looking at the B/C/S version that this document is
15 unsigned. In place of the signature, there is some kind of designation
16 which does not point in any way as to who the author of this document
17 might be, so that our objection remains.
18 The Prosecution has informed us how it has obtained this
19 document, and that is indisputable. The Prosecution has obtained this
20 document via the Ministry of the Interior of the Republic of Croatia
21 this document was attached to a police report in the proceedings against
22 Cedomir Bulat. In other words, it was part and portion of the initial
23 document that was submitted in the proceedings against this person. We
24 don't know what happened with this document afterwards, whether it was
25 part of the indictment, and even less do we know how the Croatian
1 authorities actually handled this document. We just know that it was
2 attached to the police report or police complaint, and this doesn't
3 really mean anything because of the fact that in our system there are
4 numerous documents that are attached to the criminal complaint, so that
5 this does not really help in any way.
6 What we would request is that the Prosecutor provide some further
7 evidence as to the provenance of this document. And if they do so in the
8 course of these proceedings, we can revisit this issue. In the meantime,
9 our position remains the same. This document should remain as an MFI'd
10 document. This is our principal position on any such documents, a
11 document that is unsigned. Unsigned and unclear documents do not really
12 meet the requirements, especially in a situation where we don't know
13 anything about its provenance, or authenticity, or authorship.
14 Thank you.
15 JUDGE ORIE: It does not meet what requirements exactly,
16 Mr. Petrovic?
17 MR. PETROVIC: [Interpretation] Well, primarily I mean the
18 requirement of authenticity, but we can also discuss other aspects. As
19 for its probative value, we could discuss that, but the first and
20 foremost problem with this document is its authenticity.
21 JUDGE ORIE: What, then, do you exactly mean here by
22 "authenticity"? Do you say it is -- because you said quite a lot of
23 things in relation to this document. You said, well, it apparently was
24 attached to a certain file. Then you say, We do not know what happened
25 to this document afterwards. In what respect would that affect the
2 MR. PETROVIC: [Interpretation] Your Honour, I tried to explain
3 the procedure. This document was part of the criminal report, as the
4 initial document used in the proceedings against Cedomir Bulatovic [as
5 interpreted]. Now, what happened with this document after that, whether
6 it ever became part of an indictment, or how it was assessed by a Trial
7 Chamber, if indeed this was brought to court, we don't know any of that.
8 And the initial document, in its nature, is such that it consists of a
9 huge number of documents that can later be accepted by a Trial Chamber or
10 not. So the fact, itself, that it was part of this initial document does
11 not really speak to its validity or to its probative value, because there
12 are all sorts of documents that may find their way into this initial act.
13 What later happened, we don't know.
14 JUDGE ORIE: Yes. Well, the way whether this document was used
15 in those proceedings, whether it was used as evidence supporting whatever
16 decision, seems not to be an authenticity issue. It is -- as far as I
17 understand, you are saying that it is an authenticity issue, whereas in
18 your explanation it appears to be a kind of a mixture of probative value,
19 validity -- I do not know how to exactly understand what that means,
20 whether -- I mean, the fact that it could or could not be used in local
21 proceedings is not, in itself, an authenticity issue. It may be an
22 aspect of weight to be given to a document. And if too little weight can
23 be given to a document, that might come down to lack of sufficient
24 probative value to admit it. I mean, you are mixing up a lot of matters
25 which you then say, Well, it's primarily an authenticity issue.
2 MR. PETROVIC: [Interpretation] Your Honours, I tried, when I
3 spoke about the future destiny of this document, indicate the explanation
4 offered by the Prosecution does not support any assertion on its
5 authenticity. It's being part of a criminal report doesn't say anything
6 about its authenticity. Anyone could have typed it and attached it to
7 this criminal report. This is what I wanted to say. The very fact that
8 it was attached to the criminal report means nothing. It doesn't say
9 anything about this document really being drafted, but we don't know who
10 drafted it, under what circumstances, and where. If that was not clear,
11 I apologise for not being precise enough. All we know is that this was
12 originally part of a criminal case file, but it doesn't offer sufficient
13 ground for us to conclude that this was an authentic document. It could
14 have been typed by anyone and then inserted into the case file.
15 Thank you.
16 JUDGE ORIE: Yes, which might make it an authentic document of
17 someone unknown having typed a certain document. I mean, it's not a --
18 of course, the issue is whether the official status -- how we would have
19 to establish that, if that is at all important. Perhaps it has no
20 sufficient status. I mean, if I have a handwritten piece of paper, then
21 it could still be authentic. It depends on what it claims to be. And if
22 you say, This is claimed -- well, as you say, to be a judgement, but it's
23 a forgery, because never such a judgement was passed, or, It is not
24 signed and any judgement would have to be signed, and, therefore, there
25 are many aspects. I would say authenticity is primarily a matter of: Is
1 the document what it claims to be?
2 Now, Mr. Hoffmann, there you may have a problem, because if you
3 say it is a document which doesn't claim any more than to be a document
4 which was in the initial file, author unknown, so no possibility
5 whatsoever to verify that, then, of course, you might have a problem;
6 perhaps not with the authenticity, but relevance and probative -- perhaps
7 even not relevance, but probative value.
8 Mr. Hoffmann.
9 MR. HOFFMANN: Thank you, Your Honour.
10 Maybe just for the record, the document -- the underlying
11 document we talk about, I just want to note for the record that this is
12 ERN 0152-7750 in the English, the starting page. What we have provided
13 yesterday to the parties and the Chamber is a document index which was
14 provided by the Karlovac police. It does list this particular document,
15 P107, which is to be found on page 2 of this document under item 4.
16 JUDGE ORIE: Can I stop you there.
17 The issue, apparently, is not whether you received it from the
18 authorities. The issue, apparently, is that this was a piece of paper
19 which ended up in a criminal file, not knowing where it comes from, not
20 knowing what it led to, and, therefore -- again, I'm having some problems
21 with the primary claim of authenticity, but the Chamber will consider
22 that, whether we would require further authentication of this document.
23 But that seems to be the problem, whereas your response at least started
24 with explaining where it comes from.
25 MR. HOFFMANN: Yes, Your Honour. I just wanted to introduce
1 where I'm going.
2 It says here directly that this document, as we see it on the
3 screen, is signed with a code-name, and in this document that we provided
4 yesterday, it explains exactly who the author is, who is behind that
5 code-name. It said "Code-name 91/020," in brackets "explained code for
6 the member of DB late Djuro Ogrizovic," O-g-r-i-z-o-v-i-c, "nickname,
7 Snjaka." So in our submission, with this document we show, A, that we
8 got this document from the Karlovac police. I do agree that whether or
9 not it was then used in criminal proceedings, Karlovac, to me, or to us,
10 doesn't make any point. And, furthermore, this document shows who the
11 author of this document is. That would be our submission.
12 We're happy to tender this additional document if that is of
13 assistance, into evidence.
14 JUDGE ORIE: I, therefore, do understand that you rely implicitly
15 on a practice where documents of this kind were not signed by the
16 authors, but which were, I would say, quasi-signed by just putting the
17 number of the relevant agent which took the statement at the bottom of
18 the statement.
19 Do you have any examples of similar practice, I mean, because the
20 Simatovic Defence heavily relies on the absence of a signature? You say
21 this was created in a system where it was not signatures, but numbers.
22 Are similar documents known which would support your position that this
23 actually was the way in which they made such statements?
24 MR. HOFFMANN: I think it is our understanding that it's common
25 practice in the intelligence. And as an example, I think we've seen a
1 number of documents from the so-called Pauk operation. Some of them we
2 still want to introduce at some stage, but some of them are actually only
3 signed with a nickname of persons or only with TG-2, 3, or 1, tactical
4 group, and without further reference, so, yes, we do have a number of
5 those examples. And I am just been told that we also have number
6 references, which are actually relating to Arkan, for example.
7 JUDGE ORIE: Yes. Mr. Petrovic, on the basis of this further
8 explanation, any further submissions to be made?
9 MR. PETROVIC: [Interpretation] Just two brief things.
10 This document may be admissible with this additional explanation
11 as regards authenticity. However, what my colleague says about the
12 content of this information provided by the Croatian MUP, there is no
13 cited source. And on what basis do they interpret that this number,
14 "91020," can be linked to any particular individual? I can't discern
15 that from this document.
16 If you allow me just one more sentence, please.
17 My colleague mentioned, for example, Tactical Group. Once you
18 say "Tactical Group," it's very clear who the author can be. But if you
19 have a five-digit number on an official note, drafted by an individual,
20 without any additional evidence, does not offer any insight into the
21 authorship of this document.
22 JUDGE ORIE: Mr. Jordash.
23 MR. JORDASH: May I add to Mr. -- to the Simatovic's submissions.
24 In our submission, simply saying that there's a code number on it and
25 there's also a code number on other documents doesn't take the matter any
1 further. It simply says -- it could simply say that the person who
2 manufactured the document copied previous practice. What would, in our
3 submission, take the matter further would be some indication as to who
4 said it was an official note. Did the Prosecution ask somebody to
5 confirm it was an official note? Did a named person confirm it was an
6 official note? And, further, where did the information come as to the
7 code number, and who can confirm the code number relates to the said DB
8 member? It's that kind of information which would take the matter
9 further than just simply saying it's an official note, which is all we
11 JUDGE ORIE: Have you studied the underlying material which
12 apparently was available to the Prosecution and which was made available
13 to the Simatovic Defence?
14 MR. JORDASH: This --
15 JUDGE ORIE: Yes. I don't know exactly what it is.
16 MR. JORDASH: It's a letter, it seems, from the Republic of
17 Croatia MUP, dated the 28th of February, without a year, and it simply
18 lists --
19 JUDGE ORIE: Well, it will be from next week.
20 MR. JORDASH: Yes. It simply lists the documentation that was
21 sent from the MUP to the Prosecution. So it takes the matter no further,
22 I think, than simply the Prosecution saying, Can you confirm you sent us
23 the information?
24 JUDGE ORIE: But apparently with information about who was known
25 by the person who wrote that letter -- or by the institution that wrote
1 that letter, who was known under number 91/020.
2 MR. JORDASH: Well, it says, in relation to that, official note
3 on participation in the attack of -- when purporting to describe this
4 exhibit or potential exhibit, official note on participation in the
5 attack of Subosko [phoen] on the 12th of November, 1991, signed by code
6 number 91/020 "(code for the member of the DB late Djuro Ogrizovic,
7 nicknamed Snjaka)." And then 4.1 biography Djuro Ogrizovic.
8 So it's simply somebody purporting to describe what we can all
9 see. I could give the same description to the Court by looking at the
10 document, but I have absolutely no information about the authenticity of
11 this document.
12 JUDGE ORIE: No, you couldn't give the name of the person.
13 MR. JORDASH: No, but I could say, Here's the code. I say the
14 code relates to Franko Simatovic, and no one would know any different if
15 I simply asserted that to be the case.
16 JUDGE ORIE: That's clear.
17 Mr. Hoffmann, anything to add?
18 MR. HOFFMANN: Just a quick note.
19 In the original, we do find the year. It's 28 February of 2001,
20 when this letter was sent to the ICTY. It's coming from the Republic of
22 does say on the English document, in fact on the top of it, This document
23 index was provided by Ivan Horvat from the Karlovac police. So we do
24 claim that this is, at this point in time, sufficient information about
25 the authenticity of the document. We would tender this document into
1 evidence as underlying material, if need be. In the next step, we could
2 only call this person who signed the letter or who provided the material.
3 It's clearly our understanding, when this material was provided
4 to us, that, in their understanding, they did not provide false material
5 but what they believe are authentic documents.
6 JUDGE ORIE: Yes. But that, of course, is an assumption. If we
7 would apply that, that our work might be far easier in many courts, not
8 only in this court.
9 MR. HOFFMANN: All I'm saying is I think we apply some of the
10 standards when it comes to documents that are provided through official
11 channels, through official correspondence, upon RFAs. I think it's not
12 the practice that we always ask the person who's responding on an RFA to
13 appear in court to explain that he actually provided authentic documents
14 or documents they have found in their collection.
15 [Trial Chamber confers]
16 JUDGE ORIE: Mr. Hoffmann, the Chamber would like you to tender
17 the document you just mentioned. A number could be assigned to it
18 immediately. We'll MFI
19 admissibility on the two documents together; that, of course, the
20 supporting document is -- the relevance only is to see whether the claim
21 of non-authenticity is with merits and whether the Chamber should ask, as
22 the Chamber can do, for further authentication of the document.
23 Could you please give the 65 ter number, if there is any yet. If
24 not, it may not be in your 65 ter list. But since the Chamber asked you
25 to produce it, perhaps you --
1 MR. HOFFMANN: What I can give is the ERN again. The starting
2 ERN is 0152-7750.
3 JUDGE ORIE: And it is a letter --
4 MR. HOFFMANN: From the Karlovac police in Croatia, dated
5 28 February 2001
6 JUDGE ORIE: 2001.
7 Madam Registrar.
8 THE REGISTRAR: It will become Exhibit P260, marked for
9 identification, Your Honours.
10 JUDGE ORIE: Thank you. And it will keep that status for the
11 time being.
12 I will move on. But before I move to my next MFI, I'd like to
13 move to an MFI
15 When we were looking at the associated exhibits for JF-008,
16 Ms. Friedman said that there were two MFIs on that list. I'm talking --
17 two MFIs on that list. Then I corrected her and said, I see three MFIs,
18 and she said, I stand corrected.
19 Now, the three MFIs I saw on that list was P150, P146, and P148.
20 Now, it turns out that where I saw three, there actually were only two,
21 because P146, which appears on this list as an MFI, was already admitted
22 into evidence on the 20th of January. And, therefore, Ms. Friedman was
23 right, that there were only two MFIs, I was right that I saw three, and
24 that is now clear on the record. So, therefore, the MFI P146 is not an
1 Then I move on. P179 is a document which is MFI'd under seal.
2 There are two objections against this document. The first one was the
3 link between the witness and the document, speculation as to the identity
4 of a person mentioned in this document. That objection is denied.
5 Now, there was another objection. That was authenticity. It was
6 a document which did not bear a full signature, but rather a kind of
7 initials. And I think it was contested that this was signed by
8 Mr. Stanisic.
9 MR. GROOME: Your Honour.
10 JUDGE ORIE: Yes.
11 MR. GROOME: Sorry to interrupt, but if I could inform you that
12 based on our communications with the Government of Serbia, this is a
13 document that they intend to file protective measures regarding, so
14 perhaps it might be more prudent to be in private session to talk about
15 it in detail.
16 JUDGE ORIE: Yes. As a matter of fact, I would not go into any
17 further detail on the matter.
18 The challenge to the authenticity, the Chamber invites the
19 Stanisic Defence to further elaborate on this challenge to authenticity.
20 That could be done by showing that, for example, initials and signature
21 are always different. Of course, it doesn't make that much sense to
22 compare initials with full signatures, if documents exist both with full
23 signature and with initials, and then to say that the initial is
24 different from a signature, of course, it is not very helpful for the
25 Chamber to assess the authenticity. If, however, there are other
1 documents in your possession - but in response, of course, the
2 Prosecution could claim that they have such documents - where you'd see
3 that, if initialled, those initials look quite different from what we see
4 on this document, then we have a further substantiation of the challenge
5 of authenticity. Further, one could look at the similarity of documents,
6 are there documents of a similar structure, similar subject matter,
7 similar provenance, similar numbering, whatever, which are initialled
8 where it's not contested that the initials or the signature are from
9 Mr. Stanisic, that might help us in better understanding the challenge.
10 And if there's any other piece of information which would shed additional
11 light on the challenge to the authenticity, then, of course, the Chamber
12 would like to hear that. I think best to be done in a written
13 submission, further elaborating on the challenge of authenticity. We'd
14 then receive the response by the Prosecution, and then the Chamber will
15 decide whether or not it requires further proof of authenticity. As you
16 may know, the Chamber can require such evidence. But we'd like to
17 receive further information before coming to any conclusions in this
19 MR. JORDASH: Could I just inform the Court of this, because it
20 might affect whether Your Honours still require us to do something in
21 written form at this stage: They'll be essentially two challenges. One
22 will be to the nature of Mr. Stanisic's job, and we will submit that his
23 job did not entail this type of work. That's the first way which we
24 intend to deal with it during our Defence case. And then, secondly, we
25 will be giving due consideration to a handwriting expert. We do not know
1 whether there is sufficient writing to conduct such analysis.
2 JUDGE ORIE: Is the original available?
3 MR. JORDASH: That, we don't know. We haven't as yet --
4 JUDGE ORIE: Because I know from my experience that don't ask an
5 expert to give an expert opinion on copies, because the first answer
6 you'll get, that someone needs the original. But perhaps -- Mr. Jordash,
7 have you finished or --
8 MR. JORDASH: Yes. It's those two ways in which we will seek to
9 demonstrate that this document is not an authentic document.
10 JUDGE ORIE: Yes. Now, the first argument you used, that it is
11 not within, let's say, the job description of Mr. Stanisic, to say it
12 briefly, is of a different kind -- of a totally different kind from the
13 second one. Now, of course, to challenge all that, there's no need to do
14 that if the document is not admitted into evidence. So the first
15 decision the Chamber will have to take is whether or not at this moment
16 it would require further authenticity, and it would like to receive as
17 much information -- of course, if you would, in this context, want to
18 provide an expert report, we would consider that, because we asked for
19 any information which could shed further light on the authenticity.
20 But as I said before, there are many elements, the structure of
21 the document, similar documents, but if you say they are not similar
22 documents, then that would certainly support your first argument that
23 this is not within the job description. If, however, there are 10 or 20
24 of the same, where there's no challenge to the signature or to the
25 initials, then, of course, it may, to some extent, undermine your first
2 MR. JORDASH: Yes, that's right. On the other hand, we -- yes,
3 that's right. There aren't a huge number. Off the top of my head, I
4 don't know. I think there are at least one or two more documents like
5 this. But there are not a huge number.
6 JUDGE ORIE: Okay. We'll have -- the Chamber invites the
7 parties -- invites, first of all, you to make further submissions to
8 substantiate your authenticity challenges, and if you want to include
9 there the job description, I must admit that I don't know whether I'm the
10 only one in this courtroom, but I have done, at some occasions, things
11 which did not fit for the full 100 per cent in my job description in many
12 capacities. So therefore it is a different kind of argument because it
13 is a relative argument rather than the other part of your submission,
14 that is, you want to have expert opinion on whether this could have been
15 written by a certain person. You're invited to make these submissions.
16 Mr. Groome.
17 MR. GROOME: Your Honour, we'll rely on written submissions as
19 I would just point out now at this stage that this is a document
20 that we received in response to a request for assistance from the
21 Government of Serbia
22 first Bar table motion. But we will respond to the specific submissions
23 of Mr. Jordash.
24 JUDGE ORIE: Yes. And we'll then certainly have a look at the
25 Bar table motion. There's no need to copy everything again.
1 Yes, I would like to close this one.
2 Mr. Jordash, when do you think you could make submissions? I
3 could imagine that an expert report would take more time, but just to
4 elaborate on your challenge of the authenticity.
5 MR. JORDASH: If we could have 14 days that would be --
6 JUDGE ORIE: Fourteen days is granted.
7 And then may I take it that the Prosecution, wether or not by
8 brief references also to other submissions already made, one week, would
9 that do?
10 MR. GROOME: Yes, Your Honour.
11 And just if it assists Mr. Jordash, I believe the originals of
12 the documents do exist in BIA, the new name of the former State Security
14 JUDGE ORIE: Then I would like to move on to D3, which is an
15 official note which was introduced through Witness Saric, and the OTP
16 contests the authenticity. The parties will be given a further
17 opportunity to make submissions on the admission of this document, on the
18 sources on the basis of which the OTP contested the authenticity, so we
19 would like to receive a further elaboration on the objections. And then,
20 of course, the Defence will have an opportunity to respond to that, so
21 that we'll finally be able to see whether we need to order the parties to
22 provide further evidence, as far as the authenticity is concerned.
23 Mr. Hoffmann.
24 MR. HOFFMANN: I was just wondering, I think it's a pretty
25 straightforward issue with this document, and it could be dealt, I think,
1 very shortly for all submissions.
2 JUDGE ORIE: How much time do you think you would need to do
4 MR. HOFFMANN: Well, my submission would be probably just a few
6 JUDGE ORIE: A few lines. Please go ahead.
7 MR. HOFFMANN: Thank you, Your Honour.
8 The document we're talking about is allegedly a witness statement
9 of a certain Emil Cakalic. What this Cakalic allegedly said was put to
10 the witness, which is fine, but then the alleged statement was tendered
11 into evidence and marked for identification. At the time, there was no
12 foundation laid. Witness Savic did not confirm any of the content of
13 that statement. We submit it should be up to the Defence, if they want
14 to call in their case this witness, they could do so. Otherwise, they
15 could tender the statement under 92 ter.
16 And more importantly, we noted already at the time that the same
17 witness of whose that statement allegedly is testified under oath in the
18 Milosevic case on the same point that was put to Witness Savic, and on
19 three or four occasions in the Milosevic trial, and that's on 16 July
20 2003, he denied those very allegations, and it was just about the
21 question whether or not Witness Savic did beat this Mr. Cakalic, yes or
22 no. That's contained in the statement. That was put to the witness, and
23 under oath various times in the Milosevic trial, he said that was not the
24 case, it was not true.
25 So we see no basis whatsoever to tender this statement.
1 JUDGE ORIE: At least to have it admitted, because it has been
2 tendered already, isn't it? It has been MFI'd?
3 MR. HOFFMANN: Yes. No basis for admission, Your Honours.
4 JUDGE ORIE: Yes.
5 Mr. Petrovic, because it was the a Simatovic Defence matter.
6 MR. PETROVIC: [Interpretation] Mr. President, it happened while
7 the other Defence team was here. I think that my colleague from the
8 Prosecution is misrepresenting the context in which this statement was
9 put to the witness.
10 At pages 1913 and 1914, that's what was done. The main issue was
11 whether Witness Savic questioned Witness Cakalic or not. That was the
12 question. Do I understand the transcript? And since Witness Savic
13 denied having interrogated Cakalic in any way, then my colleague
14 Jovanovic tendered this statement, and this statement was shown to the
15 witness. And this is where it all ended. It was -- the court was about
16 to adjourn, and there was no debate.
17 Let me remind you of one other thing. The point is not whether
18 he had beat him or whether -- the point is whether he had questioned
19 Cakalic. At page 24522 through 24525 in the Milosevic trial, it is my
20 understanding that Witness Cakalic did not deny that he had been
21 questioned by Witness Savic, and Goran Hadzic, to boot. The point is
22 whether he questioned him, not whether he beat him. So the witness
23 accepted the claim that he had been questioned, but not that he had been
24 beaten. So it's not the issue of physical abuse, but of interrogation.
25 So in this context, where Witness Savic denied having taken part
1 in Cakalic's interrogation, my colleague Mr. Jovanovic showed him a
2 document, which we have now in front of us, D3, and it's a document that
3 a few days before that, on the 12th of May, 2009, was submitted to the
4 Simatovic Defence by the Prosecution as exculpatory material under
5 Rule 68, although there is not a clear distinction whether it was under
6 Rule 68(1) or 68(2), but this was stated in the cover letter from the
7 Prosecution. This is how the Defence obtained this letter.
8 So this is the context. And given this context, there is every
9 reason for this statement to be admitted into evidence.
10 Thank you.
11 JUDGE ORIE: So if I understand you well, the Prosecution is
12 objecting because it says that the content of the statement in the
13 Official Note is contradicted by testimony given under oath, whereas the
14 Simatovic Defence says that, That's not the issue for us. For us the
15 issue is that Mr. Savic says that he never interviewed Mr. Cakalic, and
16 this document shows that he did.
17 MR. HOFFMANN: Your Honours, the main objection is the way how to
18 introduce statements of other witnesses. It wasn't about whether or not
19 this could be put in questions to the witness, but whether or not it's
20 proper. And I think we've had many similar discussions before that,
21 whether or not it's simple, without any 92 ter or bis foundation, to
22 tender a statement of a different witness. It's up to the Defence to
23 call Mr. Cakalic in their case, if they want. It's been put to the
24 witness. And whether or not -- the issue is whether he was interrogated
25 or beaten, the under-oath testimony shows that, at least in part, the
1 statement put forward as D3 exhibit is not correct.
2 JUDGE ORIE: Well, that's still to be established, what is
3 correct or not correct. They're contradicting. That's how I understand
4 your observation.
5 Mr. Hoffmann, isn't it true that Rule 92 ter applies certainly to
6 any document which was created for the purposes of this Tribunal, whereas
7 official notes are usually not documents which are prepared for being
8 used in this Tribunal, and that statements prepared for other purposes
9 can be admitted under Rule 89? I'm just asking you. It's a legal issue.
10 You raised the issue.
11 MR. HOFFMANN: Yes, Your Honours.
12 Yeah, I think you're right on this, that if we have a local
13 statement which was not prepared primarily for the proceedings in this
14 Tribunal, then that could be potentially admitted under 89(F). But,
15 again --
16 JUDGE ORIE: Yes, which means that your reliance on the
17 requirements of 92 ter not to be met is, to say the least, not the most
18 solid one.
19 MR. HOFFMANN: Well, I think the issue remains that part of the
20 statement that is put to us has been contradicted by this witness when he
21 testified before this Tribunal under oath, so we do have an issue. And
22 I think that the least we would say is if that statement would be
23 admitted into evidence, then at least the corresponding Milosevic
24 transcript should be admitted as well.
25 JUDGE ORIE: Mr. Petrovic, would you have any objection against
1 the Milosevic transcript to be admitted into evidence?
2 MR. PETROVIC: [Interpretation] It is absolutely acceptable to us
3 for the pages that I've just quoted to you to be admitted into evidence
4 and to be part of the record side by side with this exhibit.
5 JUDGE ORIE: Would that --
6 MR. HOFFMANN: I would have to verify the page numbers,
7 because --
8 JUDGE ORIE: I would then suggest the following: that the parties
9 are invited to sit together and to see whether the objection by the
10 Prosecution would still stand if certain portions of the evidence of this
11 witness, a selected portion - we're not seeking the whole of it; it's
12 apparently focusing on a certain matter - would be admitted in relation
13 to this document. We'd like to hear from the parties within a week.
14 Then next one, D5. There was a request. It was an interview.
15 It was tendered by the Stanisic Defence, and the OTP would like to have
16 redactions of sensitive information in this document.
17 I do know that we have a redacted version in evidence. However,
18 the unredacted version has not been up-loaded, has not been assigned a
19 number, and has not been admitted. And, of course, the Chamber needs in
20 evidence the unredacted version.
21 Has the unredacted version been up-loaded? It has been. I see
22 Madam Registrar confirms that.
23 Madam Registrar, that would be number --
24 [Trial Chamber and registrar confer]
25 JUDGE ORIE: No, I would like you to assign a number -- a
1 separate number to the unredacted version so that it can be admitted
2 under seal.
3 THE REGISTRAR: This will become Exhibit D27, under seal,
4 Your Honours.
5 JUDGE ORIE: D27 is admitted under seal.
6 As far as D6 is concerned, there was a translation issue. The
7 Prosecution would verify and correct the translation.
8 Has the revised translation been up-loaded?
9 MR. HOFFMANN: Yes, Your Honours, just today, is my
10 understanding, but it has been.
11 JUDGE ORIE: Under the same number -- 65 ter number?
12 MR. HOFFMANN: My understanding is it was up-loaded under "D6."
13 JUDGE ORIE: D6.
14 Madam Registrar, leave is granted to replace the new version of
15 D6 in the e-court system.
16 D9 is a document --
17 [Trial Chamber and legal officer confer]
18 JUDGE ORIE: Yes. Apart from replacing it, of course, the
19 Chamber would still have to give a decision on admission. D6, in its new
20 version, is admitted into evidence.
21 I move to D9, which is a document under seal, but with the
22 adequate caution we could deal with it in open session.
23 An objection was raised against admission of D9. But, as I
24 understand, the OTP has withdrawn its objection, but under the condition
25 that the document would be admitted under seal. Is that correct,
1 Mr. Groome?
2 MR. GROOME: Sorry, Your Honour, we're quite a bit surprised by
4 JUDGE ORIE: D9.
5 MR. GROOME: Your Honour, if we could just have a moment. If
6 there's another matter we could move on to, I'll try to call that
7 document up and see if I can refresh my recollection.
8 JUDGE ORIE: Transcript pages 2608 to 2611, and in private
9 session 2619. It was Witness JF-007.
10 MR. GROOME: Mr. Hoffmann informs me that he believes that we've
11 withdrawn this as an exhibit, but if I could have until -- I'm sorry,
12 withdrawn its objection. Yes, Your Honour.
13 JUDGE ORIE: Yes.
14 MR. GROOME: If I could just verify that and then come back to
15 the Court the next time we're sitting.
16 JUDGE ORIE: Yes, that's our information as well, that the
17 withdrawal was expressed on the 21st of January.
18 Would there be any objection against admission under seal?
19 MR. PETROVIC: [Interpretation] No, Your Honours.
20 JUDGE ORIE: Then D9 is admitted under seal. And if further
21 verification would show that what you think to be the case and what we
22 think you've done, that is, to withdraw the objection, then we still can
23 reconsider that.
24 D13, there was a missing first page to be up-loaded by the
25 Stanisic Defence. Has this been done?
1 MR. JORDASH: Apologies, it hasn't. But we can commit to making
2 sure that it's done by Monday.
3 JUDGE ORIE: Yes. Then we would revisit the matter on Monday --
4 MR. JORDASH: Oh, I beg your pardon. I think what has to happen
5 is we have to have it translated first. So if we can --
6 JUDGE ORIE: Yes. It would first have to be translated, but, of
7 course -- and then to be up-loaded. As a matter of fact, we instructed
8 you to inform us when it was translated and up-loaded, but this was
9 already a while ago. And since it was only one page, we expected the
11 MR. JORDASH: This is an oversight on our part and we do
12 apologise, but we will make sure it's submitted for translation by
13 Monday, at the latest.
14 JUDGE ORIE: Yes. So it's only one page. Could we -- by the end
15 of next week, too?
16 MR. JORDASH: Certainly.
17 JUDGE ORIE: Mr. Hoffmann.
18 MR. HOFFMANN: Just on Exhibit D13, if I remember correctly,
19 Your Honours had some questions about this document to the Defence which
20 weren't answered at the time. It was about whether this one, about a
21 certain Slobodan Katanic, or another one would be correct. I don't know
22 if those questions, in the Chamber's view, have been clarified or not,
23 but I thought that was one of the issues why it was marked for
25 JUDGE ORIE: Mr. Jordash saved us by the bell, because we now
1 have an opportunity to further review pages 2914 to 17. Mr. Jordash will
2 do the same, and then we'll have a look at whether we have received all
3 the information we need for a final decision.
4 MR. JORDASH: I can indicate now, Your Honours, that we haven't
5 as yet investigated which date of birth is the correct one, and what we
6 have done is simply relied upon a document. There are other documents
7 relating to this particular gentleman. And we could, of course, set out
8 and investigate when his date of birth was, or the Prosecution could
9 simply indicate whether they actually dispute the existence of this man
10 and the detail in the exhibit.
11 JUDGE ORIE: Perfectly a matter for further conversations and
12 perhaps to see what the Prosecution still expects from the Stanisic, or
13 the other way around.
14 MR. HOFFMANN: Your Honours, we didn't object at the time, and we
15 didn't have any questions. At the moment, I also have no verification of
16 the date of birth, but we had no issue with the admission of this
17 document. I was just noting your questions to the Defence at the time
18 about the Defence position on whether the one or the other document is
20 JUDGE ORIE: Okay. So, therefore, as far as admission is
21 concerned, there seems to be no problem. Then we are still waiting for
22 the translation and for uploading of the document, and we'll hear from
23 you by the end of next week, Mr. Jordash.
24 Then I move to D14, which is a document under seal. Yes. There
25 has been an issue as to what to do with the document, which contains, as
1 it was emphasised by the Prosecution, a negative answer to a question
2 whether the MUP records and archives show that a certain person - I think
3 we're talking about Witness JF-005 - worked for the special forces, yes
4 or no.
5 The Chamber admits D14, under seal, but the Chamber would be
6 assisted in properly attaching weight to this document if the parties
7 would present further submissions on the fact whether or not this person
8 worked in that position, and to present any further evidence to that.
9 Therefore, we admit the document in evidence, but we give a clear signal
10 to the parties that in order to be better capable of giving weight to
11 this document, that we would like to hear further submissions on this and
12 similar matters.
13 [Trial Chamber and legal officer confer]
14 JUDGE ORIE: I'm informed that apart from this matter, that
15 finally the document can only be admitted if an English translation is
16 attached and up-loaded. So, therefore, the Chamber -- well, I've just
17 said it's not a final decision of the Chamber. We'd like to have the
18 English translation first. But what is to be found in the document needs
19 -- the Chamber needs further assistance in exactly weighing this
20 evidence, and invites the parties to make further submissions on this
22 MR. GROOME: Your Honour, as you'll recall, the concern that I
23 raised was Serbia
24 been -- so --
25 JUDGE ORIE: You said -- you explained to us that these
1 situations happened before, that you got similar information which then
2 later turned out to be wrong. Now, of course, the Chamber -- that's what
3 you said. If there's any documentary evidence showing that, We asked
4 this for a different person, we got this answer at that moment, and it
5 turned out to be true because they wrote us at a later stage that -- or
6 we received evidence. So that's exactly the kind of information the
7 Chamber would like to receive, because on face value, it seems to be
8 denial, although saying that we find anything in the records can mean two
9 things; that it didn't happen, or that it wasn't recorded. I mean, there
10 are several options.
11 Now in order to better able to understand the probative value of
12 this document, the Chamber would like to hear from the Prosecution of
13 similar experiences, well documented, so that the Chamber is better able
14 to assess what weight to give to this document, phrased in the way as it
15 is, because you specifically have drawn our attention to the way in which
16 the denial or the negative finding was phrased.
17 MR. GROOME: Yes, Your Honour, and it may require that the
18 Prosecution call a representative of Serbia to explain their position
19 with respect to these. But I will look into the matter and decide what's
20 the best course to take.
21 JUDGE ORIE: Yes, of course. Nothing opposes, apart perhaps from
22 the time granted to you in your 65 ter list, to receive evidence, even
23 witness testimony, in respect of this.
24 Mr. Jordash.
25 MR. JORDASH: Your Honour, could I just seek some clarification?
1 What the Chamber is looking for is submissions on the -- I
2 suppose the meaning of documents which emanate from this source?
3 JUDGE ORIE: Not only from this source. Perhaps also from the
4 source. I do not know. I mean, the Chamber is not fully acquainted with
5 all the -- if it is source, then we would like to hear that from the
6 Prosecution that documents coming from this source have turned out to be
7 inaccurate several times; or information from whatever source about
8 members of Unit A, B, or C, have turned out to be inaccurate several
9 times. The Chamber is just not aware, and that's the reason why we admit
10 this document into evidence, but in order to better assess the probative
11 value the Chamber would like to have substantiation of the matters that
12 were raised by the Prosecution or any other matter which may shed some
13 light. And if, at a later stage, you would call witnesses on this
14 matter, then you could say, This and this is our experience, but apart
15 from that we intend to call Witness A, B, or C, to shed further light on
16 this or similar documents.
17 MR. JORDASH: Certainly.
18 JUDGE ORIE: Yes.
19 MR. JORDASH: But Your Honours are not looking -- I just want to
20 be certain about this aspect. Your Honours are not looking for
21 substantive submissions on the witness and whether -- our respective
22 positions on whether the witness was a member of a particular unit?
23 JUDGE ORIE: At this moment, we are seeking additional
24 information which allows us to better understand the probative value. If
25 there would be clear evidence -- if you would say -- or you would say, I
1 have five pictures and four telephone conversations which clearly showed
2 that he was a member, then, of course, that could shed some light as
3 well. But at this moment, the Chamber is primarily focusing on a further
4 substantiation of the matters raised in relation to this document by the
5 Prosecution. But we do not exclude, because the document is just saying,
6 We don't have records of this person being in this service, yes or no.
7 I can imagine that, at a later stage, the parties -- you to say, This is
8 correct, or you to say, This is not correct, that would further focus on
9 the substance, not any more directly related to the probative value or
10 the weight to be given to this specific document, which is just one
11 element in what apparently is the substance of the problem, was he or was
12 he not.
13 MR. JORDASH: Thank you. Thank you very much.
14 JUDGE ORIE: Yes. Then I know it's getting later and later.
15 I have one final matter on my agenda, which relates to D19.
16 D19, there was an objection. The Prosecution requested an
17 opportunity to further verify the origin of the document. And then on
18 the 9th of February, the Prosecution made a submission in which it states
19 that it verified the origin of the exhibit and informs the Trial Chamber
20 and the Defence that, according to records in the possession of the
21 Office of the Prosecutor, the Witness Slobodan Lazarevic, provided the
22 document on the 4th of January, and therefore does not object any further
23 to the authenticity of D19.
24 Mr. Groome.
25 MR. GROOME: That's correct, Your Honour.
1 JUDGE ORIE: Therefore, since there were no other objections, as
2 I understand, it's ready to be admitted.
3 MR. GROOME: Yes, Your Honour.
4 JUDGE ORIE: D19 is admitted into evidence.
5 I am through my list, and I don't think that --
6 [Trial Chamber and legal officer confer]
7 JUDGE ORIE: I've gone through my MFI list.
8 First question: Any other matters as far as MFI's are concerned?
9 MR. GROOME: Yes, Your Honour, there were two other MFIs with
10 respect to the Witness Slobodan Lazarevic. I refer Your Honours to
11 transcript of 9 of February, transcript pages 3487 and 3489. If you
12 recall, this was the -- the two documents that purported to be an
13 indictment and an arrest warrant. It was very late in the day, and I
14 simply noted my objection. And without having time to express it, the
15 documents were marked for identification.
16 JUDGE ORIE: Is that D25 and D26?
17 MR. GROOME: Yes, Your Honour, I'm sorry, D25 and D26.
18 JUDGE ORIE: D25 and D26. I think -- let me just check.
19 [Trial Chamber and legal officer confer]
20 JUDGE ORIE: Yes. The Chamber will deal with this matter, and
21 invites the parties to wait until they've heard from the Chamber, and
22 then only to decide on any follow-up of D25 and D26.
23 MR. GROOME: Will the Prosecution have an opportunity to put its
24 position with respect to the admissibility? I'm not sure what
25 Your Honour is referring to, but --
1 JUDGE ORIE: Yes. No. Further the Chamber will address the
2 matter, and of course we'll also at that moment -- it's not just about
3 admissibility - that's the issue - but that is related to it, and
4 therefore the parties are invited to wait to make any further submissions
5 until the Chamber has addressed the matter first, and then you'll be
6 given an opportunity.
7 MR. GROOME: Thank you, Your Honour.
8 Mr. Hoffmann has two matters regarding MFIs.
9 JUDGE ORIE: Yes, Mr. Hoffmann.
10 MR. HOFFMANN: Thank you, Your Honour.
11 Very briefly, I wanted to note that for Exhibit P260, the
12 document that we talked about a while ago, we have already up-loaded and
13 released the one, which is the underlying document for Exhibit P107. You
14 already assigned the numbers, pending the --
15 JUDGE ORIE: Yes. Could you remind me what number
16 Madam Registrar had a assigned to it?
17 MR. HOFFMANN: P260.
18 JUDGE ORIE: P260. And there was no need to have it admitted
19 under seal, was it?
20 MR. HOFFMANN: No.
21 JUDGE ORIE: Now, let me just -- yes, that was the underlying
22 document, giving further details so that the Chamber could consider P107
23 and P260 in context.
24 P260 is admitted into evidence.
25 MR. HOFFMANN: Thank you, Your Honour.
1 The other issue is just a matter of the status of another
2 exhibit. It's Exhibit P166. It's currently under seal. It's a
3 document -- a report from the SGB
4 Witness B-1048. It was used in closed session, the answer on the
5 document was given in closed session, but we submit that the document, as
6 such, doesn't reveal any of the identity, so that the document, itself,
7 could be well made public.
8 JUDGE ORIE: Yes. We'll consider it, we'll have a look at it.
9 Of course, I was not prepared to deal with that.
10 Could the Defence teams also look into the matter. We'd like to
11 hear from you by next -- no, let's not say if you do not make any -- we'd
12 like to hear from you, an answer, whether you would or would not object
13 to making P166 a public document by Wednesday, and the Chamber would then
15 Any other matter, Mr. Hoffmann?
16 MR. HOFFMANN: Yes, one final matter.
17 I don't know if and when the Chamber wanted to deal with the
18 exhibits and prior statements of Witness Kovacevic. At the time, they
19 were all marked for identification. I think that was done at the time
20 because of the adjournment of cross-examination. However, as
21 Your Honours may recall, the witness did attest to his prior statements,
22 so the 92 ter requirements were fulfilled. We tendered a number of
23 exhibits, and we would submit that those should be admitted into evidence
24 even prior to the continuation of his examination and cross-examination.
25 Thank you.
1 JUDGE ORIE: Yes, we will consider that, and I'm not going to
2 immediately rule on your request. We'll further consider the matter and
3 let you know most likely in the middle of next week.
4 Having dealt with all the MFIs, any further MFI concerns with the
5 Stanisic Defence, not with the Simatovic Defence?
6 Any other procedural matter to be raised, apart from the MFI list
7 and the ones we've dealt with already?
8 MR. GROOME: Not from the Prosecution, Your Honour.
9 JUDGE ORIE: Thank you, Mr. Groome.
10 Mr. Jordash, no further issues?
11 MR. PETROVIC: [No interpretation]
12 JUDGE ORIE: Mr. Petrovic, the same.
13 Then we adjourn, and we'll resume Monday --
14 MR. PETROVIC: [Interpretation] No, Your Honour.
15 JUDGE ORIE: Oh, I saw on my screen: "Mr. Petrovic: [No
16 interpretation]." No interpretation, apparently. It's therefore on the
17 record that neither Mr. Jordash, nor Mr. Petrovic, had anything to be
18 added to our agenda.
19 We'll adjourn, and we'll resume on Monday, the 22nd of February,
20 quarter past 2.00 in Courtroom II.
21 --- Whereupon the hearing adjourned at 12.28 p.m.
22 to be reconvened on Monday, the 22nd day of
23 February, 2010, at 2.15 p.m.