1 Wednesday, 28 March 2012
2 [The Accused Stanisic and Simatovic not present]
3 [Open session]
4 --- Upon commencing at 9.12 a.m.
5 JUDGE ORIE: Good morning to everyone in and around this
7 Madam Registrar, would you please call the case.
8 THE REGISTRAR: Good morning, Your Honours. This is case
9 IT-03-69-T, the Prosecutor versus Jovica Stanisic and Franko Simatovic.
10 JUDGE ORIE: Thank you. Thank you, Madam Registrar.
11 I establish that the accused are not in the courtroom. They have
12 waived their right to be present today. Usually a waiver form follows,
13 but it's perfectly clear on the transcript that they waived their right,
14 so whether or not there's a waiver form is not essential at this moment.
15 The Chamber received yesterday the Stanisic Defence submissions
16 in relation to the chart which arrived, I think, at 3.00 in the
17 afternoon. We were able to digest most of it. However, the Simatovic
18 Defence material came in so late that I was just unable to digest it, but
19 we'll proceed anyhow. Then finally yesterday evening a consolidated
20 chart was received.
21 One of the, I would say, simple old-fashioned problems is that I
22 make my notes on a hard copy of the chart and I can't just transfer all
23 these notes to another chart. That's the reason why apart from what
24 we'll do in the future, that's the reason why we'll still take as a
25 starting point for the MFIs the MFI list as produce by the registrar.
1 But we are not there yet. Let's first go through the agenda which
2 contains a lot of other items to start with.
3 I have dealt with number 1. That's the absence of the accused,
4 which is hereby on the record.
5 Second, I think as a matter of fact I dealt with most of it, that
6 is, the initiative taken by the Prosecution on the 21st of March, a
7 submission aiming at streamlining the housekeeping session, which
8 contained an invitation to the Chamber to order the Defence to submit its
9 position on all pending matters, an increased efforts to deal with
10 housekeeping matters out of court, and a system of dealing with MFIs
11 closer to the witness's testimony.
12 Ms. Marcus, you may have noticed that we did not order the
13 Defence to fill in the Prosecution's chart, although as I said before,
14 submissions were received in line with your suggestion yesterday. The
15 problem, of course, is that it came all rather late, but we considered
16 that input to the extent possible.
17 Then as far as dealing with MFIs out of court is concerned, the
18 parties are encouraged to prepare outstanding matters to such an extent
19 that the Chamber has everything it needs before it in order to come to a
20 decision on admission, and the Chamber also seriously consider dealing
21 with matters that only require a Chamber decision through a written
22 decision after the housekeeping session. So we take your suggestions
23 very seriously.
24 As for changing the system, of course we are at a very late stage
25 of the present proceedings, but the Chamber, even for the time remaining,
1 would very much appreciate it if the parties took more proactive role in
2 raising outstanding matters closer to the witness's testimony as opposed
3 to waiting until the next housekeeping sessions, and that could take the
4 form of raising such matters at the end of a witness's testimony and the
5 Chamber may also consider then scheduling extra sessions if needed.
6 I move on to my next item on the agenda, which is the
7 Stanisic Defence bar table motion.
8 On the 17th of February, the Stanisic Defence filed a bar table
9 motion, and at an earlier stage, on the 3rd of February, 2011, it had
10 already filed such a motion comprising 13 documents. Over the course of
11 the last year, the Stanisic Defence stated a number of times that its
12 consolidated motion would also include the tendering of the initial 13
14 Now, the 17th of February, 2012, motion does not seem to cover
15 two out of the 13 initial documents. I do understand that the
16 Stanisic Defence will reconsider whether or not D129, which is one of
17 them, should be added or what to do with that, but there's another one
18 which is doc ID 1D1951, which is also -- does not appear in the new
19 consolidation -- consolidated motion.
20 Now, the Chamber wonders whether the Stanisic Defence has made up
21 its mind already in relation to D129.
22 MR. JORDASH: May we just have a moment, please, Your Honour. If
23 I can look at that in the next hour and alert Your Honours to our
24 decision. I'm not sure exactly what happened there.
25 JUDGE ORIE: Yes. And as far as 1D1951 is concerned, we did not
1 receive any signal that you noticed that that one also got lost in the
2 consolidated bar table motion. Do we have to understand that its
3 withdrawn or ...
4 MR. JORDASH: Again, could I let Your Honours know in the next
6 JUDGE ORIE: Yes, please.
7 Then I move on. The next item is the Simatovic motion for
8 additions to its Rule 65 ter witness list.
9 Mr. Bakrac, could you inform the Chamber about the mode of
10 testimony of these five witnesses? I'm not saying that your request will
11 be granted. We've seen the Prosecution's response by now, but how do you
12 intend to present them, as viva voce witnesses, as 92 ter witnesses?
13 What's on your mind?
14 MR. BAKRAC: [Interpretation] Your Honour, for the time being,
15 they will be viva voce. If the time allows and if the conditions are in
16 place in April, we will call our witnesses pursuant to Rule 92 ter. At
17 this moment, they are being planned to appear as viva voce witnesses.
18 JUDGE ORIE: Thank you. The Chamber encourages the -- the
19 Simatovic Defence, which has not a great track order in terms of 92 ter
20 witnesses, to -- to see whether it can prepare statements which makes it
21 easier for all of us to prepare for hearing that testimony.
22 Next item on my agenda is lifting of confidentiality. In
23 relation to the testimony of Witness Bogunovic and Witness DST-063, the
24 Chamber received informal communications of the parties on whether
25 certain portions and related exhibits can be made public, and as a result
1 of these submissions, the Chamber lifts confidentiality of the following,
2 I start with the exhibits: P2452, D338 and D339, D345 up to and
3 including D350, D354 and D355, D357 up to and including D359, D362, D364,
4 and for Witness DST-063, D390 up to and including D392.
5 Transcript: Page 13276, line 19, up to page 13279, line 5.
6 And -- and this is the last one, transcript page 13222, lines 8 to 17.
7 As a point of general clarification, whenever the Chamber lifts
8 the confidentiality of transcript portions, such orders include orders to
9 lift the confidentiality of the corresponding audio-visual recordings
10 unless otherwise indicated by the Chamber.
11 I move on to my next point. The Chamber would very much like to
12 know, and I'm talking about the existence or non-existence of an armed
13 conflict, would very much like to know whether there's any dispute
14 between the parties on the existence of a state of armed conflict in
15 Croatia and Bosnia-Herzegovina at all times relevant to the crimes
16 charged in the indictment, as per paragraph 19 of the indictment.
17 Could the Defence clarify it's position to the Chamber.
18 MR. JORDASH: No dispute.
19 JUDGE ORIE: No dispute, which I take it means that you do not
20 challenge the existence of --
21 MR. JORDASH: Yes, exactly.
22 JUDGE ORIE: -- such a state of armed conflict.
23 MR. JORDASH: Exactly.
24 JUDGE ORIE: No dispute would also be that you agree that it did
25 not exist.
1 MR. JORDASH: The former, Your Honour.
2 JUDGE ORIE: Yes.
3 Mr. Bakrac.
4 MR. BAKRAC: [Interpretation] Our position is the same,
5 Your Honour.
6 JUDGE ORIE: Thank you.
7 Then, Ms. Marcus, I take it that you agree with the Defence in
8 this respect.
9 MS. MARCUS: Yes, Your Honour.
10 JUDGE ORIE: That's clear.
11 For the next item I'd like to move into private session.
12 [Private session]
2 [Open session]
3 THE REGISTRAR: We're in open session, Your Honours.
4 JUDGE ORIE: Thank you, Madam Registrar.
5 The next item on the agenda is the possible recall of
6 Witness Novakovic. The Chamber would very much like the Prosecution to
7 indicate whether it will seek a recall of Witness Novakovic. We
8 understand that until now, the determination depended on the receipt of a
9 request for assistance.
10 Ms. Marcus.
11 MS. MARCUS: Yes, Your Honour. This is quite regrettable. There
12 is one very large request for assistance which is still outstanding. We
13 are -- I assure Your Honours, that we are in constant discussion with the
14 authorities in Serbia over this. There is apparently some bigger issue
15 about this. If the Chamber would like more information I can do that
16 confidential either in filing or in closed session. The bottom line is
17 that we need -- we haven't received the response, and we are truly in a
18 situation where our position as to the recall of that witness is
19 dependent upon the material we receive in that response, Your Honour.
20 JUDGE ORIE: Yes, of course. The situation cannot continue
21 forever. The Chamber would want to set a deadline, and I do understand
22 that you're dependent on an answer to your request for assistance. Now,
23 perhaps the fact that there's a deadline may encourage the
24 Republic of Serbia to respond to your RFA. The deadline we'll set is the
25 1st of May, which means another five weeks approximately.
1 MS. MARCUS: Thank you, Your Honour.
2 JUDGE ORIE: Now, if you feel halfway that it's -- it's not going
3 to happen, then, of course, the Chamber could also issue an order, and
4 perhaps as soon as it becomes clear to you whether or not there is a
5 realistic expectation that you'll receive it - of course there's always a
6 expectation whether or not - but as soon as you find that without the
7 assistance of the Chamber you would not move forward with sufficient
8 speed, then of course you always can address the Chamber and we could
9 support your request. And we left it until now mainly to the
10 Prosecution, but we're not going to wait forever.
11 MS. MARCUS: Thank you, Your Honour. We are trying to avoid that
12 but we will seek involvement if necessary.
13 JUDGE ORIE: Yes, at the same time if you see at a certain moment
14 that it's unavoidable, ask for it then right away rather than to drag the
15 matter along until June, July. That's not what the Chamber would like to
17 MS. MARCUS: We fully agree, Your Honour. Thank you.
18 JUDGE ORIE: Then I move on to Rule 54 bis motion of the
19 Stanisic Defence, which was filed the 25th of October, 2011.
20 Mr. Jordash, the Chamber would like to invite the
21 Stanisic Defence to withdraw or, if you still seek an order, to file an
22 updated motion which takes into account progress which was made since the
23 Rule 54 bis hearing, and we'd like to receive such a message or either
24 withdrawal or update by the 13th of April.
25 MR. JORDASH: Certainly. It's -- it's likely to be a withdrawal,
1 because we've -- we've -- I think we've had really good co-operation
2 since that time.
3 JUDGE ORIE: I leave that to you, but the Chamber would like to
4 know where we are at this moment.
5 The next item on my agenda is revised versions of exhibits. The
6 Registry is hereby instructed to make the necessary changes for P1289,
7 P1307, D434, D391, P1044, P61, P2532, P673, and P974. The parties are
8 instructed to advise the Registry about the exact doc ID numbers of the
9 revised versions, and if there's any doubt, a memo should be filed in
10 which it is clearly indicated what now the new versions of these exhibits
12 Madam Registrar, is that clear, or do you need any further --
13 THE REGISTRAR: It is clear, Your Honour.
14 JUDGE ORIE: Thank you.
15 I move on to and deal with document D56. D56 was withdrawn at
16 the end of the Prosecution's case because the necessary information about
17 its provenance wasn't there. Now, it later was re-tendered, although the
18 provenance information still was not available. The Chamber is puzzled
19 by first the withdrawal for reasons of lack of information about
20 provenance and then to re-tender it without any further information about
21 provenance. Could the parties -- and let me -- to be quite honest, I
22 don't know whether it's -- I take it that it's a 1D -- exhibits. Could
23 you update the Chamber?
24 MR. JORDASH: Well, we -- our position is that I think that's
25 from the -- the Accused Stanisic, and I think that's why the Prosecution
2 JUDGE ORIE: Yes.
3 MR. JORDASH: We would say -- sorry.
4 JUDGE ORIE: We'll spend more time in the MFI list on any
5 documents provided by Mr. Stanisic. The puzzle here, of course, was
6 withdrawal and then re-tendering where it seems that the Defence
7 apparently had drawn conclusion from the lack of information and then
8 nevertheless re-tendered it. That is --
9 MR. JORDASH: I'll look into that because I don't understand why
10 we would withdraw that because it's been our position that just because
11 it's tendered or just because it came from the accused, it doesn't --
12 JUDGE ORIE: Yes. Now, perhaps I should clarify this. The
13 Stanisic Defence withdrew it, but then of course then the Simatovic
14 Defence that re-tendered it or re-tendered it or tendered it on behalf of
15 its defence. So it's a 1D withdrawal followed by a 2D tendering.
16 MR. JORDASH: And I think that might be looking at -- because -
17 and I'm surmising - the original document that we have in front of us has
18 an ERN number 02129691, which suggests that in the intervening period the
19 Simatovic team found it on -- from the Prosecution's collection.
20 JUDGE ORIE: If that is the case, I do not know whether the
21 Prosecution assigns ERN numbers to documents which it has but where it
22 still has doubts as to its provenance.
23 MS. MARCUS: Your Honour, this -- this document has a long
24 history, as Your Honours know. I had not included it in this chart
25 because I thought it was actually a moot issue by this point, but I do
1 have it in internal notes. The reason it had an ERN was because it was
2 given by Mr. Stanisic to the OTP during a suspect interview. So D56 MNA
3 has an ERN on it for that reason. That doesn't change our concerns about
4 the -- the origin of it, and what we -- we just noted -- I just note that
5 it wasn't contained in the bar table submission of the Stanisic Defence
6 either. So as far as we're concerned, we're in precisely the same
7 situation that we were originally; that is, we maintain our objection.
8 There's been no additional evidence of reliability or authenticity.
9 JUDGE ORIE: Now objection against the document being tendered by
10 the Simatovic Defence, because the Stanisic Defence has not revisited the
11 document after it has withdrewn -- withdrawn it.
12 MS. MARCUS: Yes, Your Honour.
13 MR. JORDASH: The reason I'm hesitating is because I cannot
14 believe that I would have withdrawn it simply because the Prosecution
15 objected to it because it came from the accused, because we obviously
16 don't accept that as a position.
17 JUDGE ORIE: Okay. Please look into the matter. The puzzle has
18 been put on your table, Mr. Simatovic, and Mr. Bakrac, and you,
19 Mr. Jordash, you have added a bit to the puzzle that you don't understand
20 what appears on the record that you have withdrawn it. Perhaps we would
21 even receive a joint effort together then again for both Defence teams.
22 I leave it for the time being there. And again, we'll -- I'll
23 deal with the documents which were provided by Mr. Stanisic at a later
25 Some of the documents used with the Witness Draca and Djukic have
1 not been admitted into evidence but I think were tendered. The first is
2 1D05293.1, which consists of Croatian intercept summaries.
3 Madam Registrar, could we already provisionally assign a number
4 to this document.
5 THE REGISTRAR: The number will be D782, Your Honours.
6 JUDGE ORIE: D782.
7 The second is 1D05455, which is a Croatian intercept in relation
8 to the 12th of November, 1994. That would receive number?
9 THE REGISTRAR: Number D783, Your Honours.
10 JUDGE ORIE: And the third one is a -- is 1D05458, which is a map
11 related to the testimony.
12 THE REGISTRAR: This will be number D784, Your Honours.
13 JUDGE ORIE: Any objections by the Prosecution?
14 MS. MARCUS: No, Your Honour.
15 JUDGE ORIE: Then -- and no objections by the Simatovic Defence.
16 D782, D783 and D784 are admitted into evidence.
17 [Trial Chamber and registrar confer]
18 JUDGE ORIE: As a surprise, quite exceptionally, Madam Registrar
19 made a very small mistake; that is, to assign numbers which were assigned
21 Madam Registrar.
22 THE REGISTRAR: Your Honours, I will repeat again 65 ter numbers
23 with the numbers that will be assigned instead of those first listed.
24 So document 1D5293.1 will be D784. Document 1D5455 will receive
25 number D785. And last document was document 1D5293. That will receive
1 number D786, Your Honours.
2 JUDGE ORIE: Now, I am a bit puzzled by the last number, because
3 I think I read 1D05458, map related to testimony of the witness.
4 Madam Registrar, that's what I read, but --
5 THE REGISTRAR: Yes. That was then in the transcript. So 1D5458
6 will receive number D786, Your Honours.
7 JUDGE ORIE: D784, D785, and D786 are admitted into evidence, and
8 what I earlier said about D782, D783, and D784 is not valid anymore. We
9 find it on page 12, line 8, in the transcript.
10 I move on to 65 ter 5603.1, which is an excerpt from the Mladic
12 Now, the Chamber noticed that this excerpt is also covered by the
13 bar table motion in which it seeks all of the Mladic diaries to be
14 admitted into evidence. Nevertheless, in order to avoid confusion and in
15 view of the fact that we have admitted now and then smaller portions of
16 that Mladic diary, the Chamber would prefer that even if it would be a
17 double repetition finally to have this specific excerpt, that it would be
18 separately admitted into evidence.
19 Is there any objection by any of the Defence teams against the
20 admission of this excerpt of the Mladic diary? I hear of no objections.
21 Madam Registrar, 65 ter 5603.1 would receive number?
22 THE REGISTRAR: Number P3117, Your Honours.
23 JUDGE ORIE: P3117 is admitted into evidence.
24 The next item is document 65 ter 6320, which is a special report
25 on UN hostage-taking. The OTP wanted to bar table documents 6320. It
1 relates to Witness Helgers. The Stanisic Defence initially indicated
2 that it would have no objections, but in a filing of the 21st of March,
3 it looks as it changed its position.
4 Mr. Jordash, could you explain.
5 MR. JORDASH: Sorry, I think there might have been confusion. I
6 think it's my fault.
7 JUDGE ORIE: Well, it comes a bit as a surprise. I think you
8 objected against it because it was new evidence. At the same time, the
9 document contains information about what -- what seems to be, at least an
10 element of the Defence case, that Mr. Stanisic was involved or actively
11 involved in the release of hostages. So I was a bit confused.
12 MR. JORDASH: Right. I -- I thought that the Prosecution were
13 seeking to tender D -- sorry, to -- can I just clarify. Were the
14 Prosecution seeking to enter 65 ter 6320 in court and at that point we
15 had a discussion and an argument as to the -- whether -- whether --
16 whether the Prosecution ought to be, and we -- we at that point disagreed
17 and then later conceded? If that's the position, then I think this can
18 be cleared up quite quickly.
19 MS. MARCUS: That's essentially my recollection, Your Honours.
20 It was initially on the Stanisic Defence list for that witness. That was
21 why we didn't tender it. Then as the testimony ended and we saw that it
22 hadn't been tendered, we then sought to tender it. So they were from the
23 Stanisic Defence 65 ter list. In other words -- sorry, the 65 ter that
24 we prepared combined is just a compilation of several documents that were
25 divided up on your list. So -- but they -- they emerged from your list.
1 JUDGE ORIE: I do remember that it was a report and there was
2 some correspondence. The report, I think, explaining how the released
3 had happened, a letter, I think, signed by Mr. Stanisic. That -- it's --
4 it's a combined document containing several items.
5 MS. MARCUS: Yes, Your Honour. They were one document. Somehow
6 they ended up as two or three on the Stanisic list. We simply put them
7 back together. That's, I think, what happened.
8 JUDGE ORIE: Yes. Yes. Now, the document was not used in court,
9 from what I understand. It was finally only bar tabled perhaps at the
10 end of the testimony.
11 If you give me one second.
12 [Trial Chamber and legal officer confer]
13 JUDGE ORIE: Mr. Jordash, you see what happens if information
14 reaches us late. We do understand that in a filing of the 21st of March,
15 that you expressed that there were no objections, but that in the e-mail
16 that was received yesterday that there suddenly the objections appear
17 again. But if it's clear that there are no objections and if the OTP
18 still wishes to bar table that document, then we'll proceed.
19 MR. JORDASH: But the confusion in my mind is that in court we
20 were discussing, as far as I recall, the admission of additional excerpts
21 from the video, and now we're talking about documents.
22 JUDGE ORIE: Yes. We're now talking about the document.
23 MR. JORDASH: And I remember making a concession about the
24 videos, but -- the excerpt from the video showing the hostages being
25 coached, but I not remember making a concession about these documents,
1 and I -- I -- perhaps we made a later concession, but having reviewed the
2 position yesterday, I think we maintain our objection, or we have an
3 objection to -- to the three documents.
4 JUDGE ORIE: On what basis, Mr. Jordash?
5 MR. JORDASH: On the basis that the Prosecution have raised an
6 issue late in the day, the issue being that throughout this trial we
7 didn't appreciate that it was the Prosecution's position that, one,
8 Stanisic's release or assistance in releasing the hostages was to be
9 relied upon as proof of acting in concert to a criminal -- to -- to
10 further criminal purpose; and, two, we didn't appreciate that they were
11 going to argue that Stanisic had no humanitarian concern. So to suddenly
12 start introducing evidence at this stage to prove that fact is to -- is
13 to raise an issue and to seek to rely upon fresh evidence somewhat late
14 in the day, and we're prejudiced and cannot now meet that without further
15 admission of evidence ourselves. We -- we -- we didn't object to the --
16 sorry, to --
17 JUDGE ORIE: This very much comes down to the interpretation
18 of -- of the documents, isn't it, even where the Prosecution may rely on
19 those documents to say that there were no humanitarian concerns, I do not
20 know to what extent, but from what I again saw yesterday, it could take a
21 different position as well. So it's -- it's mainly facts which
22 apparently allow for more than one interpretation as almost always. So
23 therefore, if the Prosecution would tender a photograph of a car in order
24 to prove that the car was red, where the colour of the car on the
25 photograph is at least not a clear red, then you could say, We should
1 stop that because they want to introduce evidence at a later stage. You
2 could also take the position if you closely look at these photographs and
3 therefore look at the facts, you can see that the Prosecution in no way
4 proved that it was a red car, but -- I hope you understand my comparison.
5 And therefore, I'm wondering to what extent these documents would not be
6 such that it could be understood as to --
7 MR. JORDASH: Yes.
8 JUDGE ORIE: -- serve both interests and is mainly factual and
9 allows the Chamber, which would have to do otherwise on the basis of the
10 remaining evidence, if you would not allow this one. So I'm not in any
11 way -- how do you say it? I'm not in any way eluding to a certain
12 position, but I try to understand on what exactly the objection is
13 exactly based.
14 MR. JORDASH: Your Honour, I withdraw my objection.
15 JUDGE ORIE: Well, I hope that it's clear on the record that
16 [overlapping speakers] that it was not your --
17 MR. JORDASH: No, no, I appreciate it --
18 JUDGE ORIE: [Overlapping speakers] position.
19 MR. JORDASH: And I want to be sensible about this and not detain
20 the Court on issues which --
21 JUDGE ORIE: And I also did not anticipate in any way on how we
22 will understand and how we will interpret these.
23 MR. JORDASH: No, no, and I understand that and I hear that, and
24 I'm not relying upon any implied assertion. I just want to move the
25 issue on and don't take the point.
1 JUDGE ORIE: Okay. Then, Madam Registrar, had we already
2 assigned a number? Yes, we --
3 THE REGISTRAR: No.
4 JUDGE ORIE: No, we have not. Could you please assign a number
5 to 65 ter 6320.
6 THE REGISTRAR: Document 6320 will receive number D788,
7 Your Honours.
8 JUDGE ORIE: I'm looking at you, Mr. Bakrac. If there are no
9 objections, and apparently they are not, D788 is --
10 MR. BAKRAC: [Interpretation] No, Your Honour, no.
11 JUDGE ORIE: D788 is admitted into evidence.
12 On the 1st of February of this year during the testimony of
13 Witness Aco Draca, the Simatovic Defence requested that the Chamber go
14 into private session because of safety concerns for the witness. The
15 request was granted and, after further discussion, the Chamber informed
16 the parties that it would consider whether to lift confidentiality on
17 those portions of the transcript. In this respect, I refer you to
18 transcript pages 16764, line 13, through 16769, line 16.
19 Mr. Petrovic, at the time, explained that the witness might have
20 been at risk, and he gave the reasons for that. The Chamber then asked
21 the witness about any specific concerns he may have had in relation to
22 individuals he mentioned. The witness told us what happened during the
23 war, but he also told us but -- that he had neither seen nor heard
24 anything since then on the matter.
25 Unless the parties have urgent and compelling reasons to oppose
1 the intention of the Chamber, the Chamber is inclined to lift the
3 MR. BAKRAC: [Interpretation] Your Honours, if you allow, my
4 colleague Mr. Petrovic, as you have said, questioned this witness. I was
5 not present in the courtroom, but I have information what that was about.
6 You are right that Witness Draca did not see the persons he
7 mentioned after the war, but he has information that they are in Serbia.
8 Our Defence is still concerned. Even though he has not seen them, we
9 remain concerned that if mention of these persons became public there
10 could be a possibility that they might come and look for our witness and
11 possibly create an unpleasant situation for him. So we still remain in
12 the position, though we are at your hands, that this part of his
13 testimony should remain unavailable to the public so as to ensure the
14 safety of both him and his family.
15 [Trial Chamber confers]
16 JUDGE ORIE: Mr. Bakrac, before the Chamber decides, any further
17 comments by Prosecution or Stanisic Defence?
18 MS. MARCUS: Only to say, Your Honours, that without any actual
19 concrete basis, it's -- it's a little bit -- it's -- it's very
20 speculative. Of course, we're the last ones that want to put anybody at
21 risk, of course, but -- but it doesn't seem like there -- there's much
22 basis for it, but I leave it to the Chamber, in the Chamber's hands.
23 JUDGE ORIE: Stanisic Defence, no position?
24 Mr. Bakrac, the Chamber considers that the concerns expressed and
25 the lack of a concrete basis, that the mere possibility that something
1 would happen does not meet the threshold for keeping the relevant
2 portions of the transcript confidential, and therefore the portions I
3 referred to before, that is T 16764, line 13, through 16769, line 16, the
4 confidentiality of that portion of the transcript is hereby lifted.
5 I move on to Rule 90(H)(ii) in relation to Witness Pelevic.
6 During the testimony of Witness Pelevic, the Stanisic Defence objected
7 that the Prosecution had violated its obligations under Rule 90(H)(ii).
8 The Chamber then put further questions to the witness who stated that he
9 was aware of the Prosecution's case. The Chamber also instructed the
10 parties to further discuss the objection to see if there are areas of
11 possible agreement. The Stanisic Defence then e-mailed a set of
12 questions to the Prosecution to which the Prosecution responded.
13 Subsequently, the Stanisic Defence stated that it was not seeking a
14 ruling on its objection but may move to have certain portions of the
15 cross-examination stricken at a later stage.
16 Mr. Jordash, the Chamber hereby sets a deadline,
17 13th of April, 2012. If the Stanisic Defence wants to pursue this issue
18 further, it is instructed to file a motion by that date. If no motion is
19 filed by that date, the Chamber will consider the matter closed.
20 MR. JORDASH: Understood.
21 JUDGE ORIE: I now move to provisional protective measures for
22 documents provided by the Republic of Serbia.
23 I'll first read a decision.
24 The Chamber will now address two requests by the
25 Republic of Serbia for protective measures. On the 1st of February,
1 2012, Serbia requested provisional protective measures in relation to 17
2 documents provided to the Stanisic Defence. Specifically, Serbia
3 requested, first, that if these documents are used in court, they be used
4 in provisional closed session; and, second, that if they are tendered for
5 admission into evidence, they be provisionally placed under seal. Upon
6 notification, Serbia would then provide a reasoned request for protective
8 On the 5th of February of this year, the Prosecution informally
9 communicated to the Chamber that it did not oppose Serbia's request. The
10 Stanisic and the Simatovic Defence have not responded to Serbia's
12 As per the ongoing practice in the present case, the Chamber
13 expects the parties to request provisional private session when using any
14 documents in court which are subject to a pending or prospective request
15 for protective measures and to request, when tendering such documents,
16 that they are provisionally placed under seal. The Chamber instructs the
17 parties to continue to apply this approach, including with regard to the
18 17 documents listed in Serbia's filing of the 1st of February, 2012. The
19 Chamber further instructs the parties to notify Serbia in case of the
20 in-court use or tendering of any of these documents. The Chamber invites
21 the Republic of Serbia to file reasoned requests for protective measures
22 upon receiving such notification from the parties.
23 On the 15th of March, 2012, the Republic of Serbia requested the
24 same provisional protective measures in respect of two further documents
25 provided to the Stanisic Defence. As per the ongoing practice in the
1 present case, the Chamber instructs the parties to apply the same
2 approach to these two documents as to the aforementioned 17 documents.
3 The Chamber also invites Serbia to file reasoned requests for protective
4 measures upon receiving notification from the parties.
5 This concludes the Chamber's decision on Serbia's requests of the
6 1st of February and the 15th of March, 2012, and the Chamber hereby
7 instructs the Registry to inform the Republic of Serbia of this decision.
8 The -- in relation to this, the Chamber instructs the parties to
9 file no later than two weeks after the closure of the presentation of
10 evidence in this case submissions identifying those exhibits and
11 transcript portions that were put provisionally under seal. These
12 submissions should include the reasons for the provisional
13 confidentiality, and this should include any documents which appear on
14 memos of the Registry where it is indicated that documents often,
15 documents related to a chart, are provisionally put under seal.
16 I move on. I -- we have a document without a MFI number, which
17 was 2D1017.1, a video of the funeral of General Bratic.
18 Due to technical problems, the Registry did not receive for a
19 period of time the right clip. Now, I do understand that meanwhile this
20 video has been provided to the Registry.
21 Madam Registrar, could you confirm that.
22 THE REGISTRAR: Yes, Your Honour, that is correct. It was
23 provided yesterday.
24 JUDGE ORIE: Yes, which is relatively late, but better than
25 never. Could you assign a number to that video.
1 THE REGISTRAR: Document 2D1017.1 will receive number D789,
2 Your Honours.
3 JUDGE ORIE: Are there any objections against admission of this
5 MS. MARCUS: No, Your Honour.
6 JUDGE ORIE: Mr. Jordash, I interpret your silence as that there
7 are no objections.
8 D789 is admitted into evidence.
9 The next item on my agenda is access to public exhibits.
10 On the 24th of January, the Bosnian government requested access
11 to all documents publicly admitted in this case between the
12 9th of June, 2009, and the 23rd of January, 2012.
13 On the 23rd of August, 2010, the Chamber had set out that it
14 would rule on such requests for access to public exhibits on a
15 case-by-case basis.
16 The request of the government of Bosnia and Herzegovina has led
17 the Chamber to reconsider its approach in order to honour the public
18 nature of the trial best. While also ensuring that protective measures
19 are safeguarded, the Chamber has decided to change its practice
20 concerning requests for access to public exhibits as follows:
21 1. Once a request is received by the Registry, the Registry will
22 distribute it among the parties.
23 2. The parties then have an opportunity to review whether any of
24 the requested documents' public status is in need of a change. If so,
25 the party should submit an application to the Chamber for a status
1 change, and this is preferably to be done within two weeks of being
2 provided with the request. I'll later comment on this time limit.
3 3. In the absence of any such application, the Registry shall
4 make the relevant documents available to the applicant.
5 And this practice shall also apply to the Bosnian government's
6 request of the 24th of January, 2012, and it furthermore shall apply to a
7 request made on the 23rd of March, 2012, by the SENSE agency with regard
8 to P2532.
9 Having said this, I can imagine that especially the request of
10 the 24th of January, which covers a couple of years of public exhibits,
11 that the parties may have some difficulties in reviewing all of those
12 public exhibits on a need to change the status. Although two weeks would
13 be the time which would be considered to be sufficient under normal
14 circumstances, the Chamber invites the parties to submit any requests for
15 a variation of the two weeks in view of this very bulky request. The
16 Chamber considers that there may at this moment be some other priorities
17 as well, rather than to review a long list of public documents. At the
18 same time, as I said before, we want to honour the public nature of the
19 trial, so therefore any suggestion how to deal with that, to deal with it
20 in batches, for example, say we'll deal with the first 300 after two
21 weeks, then in the next week we'll review another 200, it doesn't take
22 much, much time. It's -- but we can imagine that a couple of thousand
23 documents to deal with that in two weeks might be too much.
24 On the other hand, P2532, which was the second request by the
25 SENSE agency, might not even require two weeks to make up your minds as
1 to whether the status is in any need of a change.
2 Is this sufficiently clear and are the parties aware of what is
3 required from them at this moment on the basis of the two requests that
4 were made?
5 Yes. I see Ms. Marcus is nodding yes.
6 [Trial Chamber and registrar confer]
7 MR. JORDASH: Sorry, these documents are already public.
8 JUDGE ORIE: Yes, but they are not accessible --
9 MR. JORDASH: Right. Okay.
10 JUDGE ORIE: -- yet. So it's practically making them available.
11 And of course what happens now and then is that until now the system was
12 that we would consider requests on a case-by-case basis, but as a rule
13 they would be made accessible after the case was over. That was also in
14 order to avoid any mistakes as in respect of a need for protection which
15 appeared only later in the case. That is a possibility. Now, as I said,
16 the Chamber has changed its approach but nevertheless want to be -- wants
17 to be very cautious about possible needs for protection. And that's the
18 reason why we will give access to it upon a request as a rule but that we
19 first would like to hear from the parties whether there's a need to
20 change the status from public in anything else.
21 MR. JORDASH: No. I understand. Thank you.
22 JUDGE ORIE: Yes. And could you please consider the time you'd
23 need for that job. It's not a very exciting job, perhaps, but that's the
24 price we have to pay for balancing the public nature of the trial, which
25 is of course the principle, and the need for protective measures.
1 Then, Madam Registrar surprises me again by making two small
2 errors in one day. That has not happened over the last couple of years.
3 All of us, we did, but she now joins us.
4 The number which was assigned to document 1D5293.1, should not be
5 D784, but instead the number should be D787.
6 Then next item on my agenda.
7 Mr. Bakrac, could you tell us anything about disclosure of prior
8 statements of the five new witnesses you'd like to have added to your
9 65 ter list and which you may call? Are there any prior statements?
3 Now, you at least interviewed some of your prospective witnesses.
4 I'm a bit surprised that you're not even allowed to take notes, which
5 is -- but -- I mean, would you have to rely on your memory only? Are any
6 statements ever taken by anyone else which are known to you?
7 MR. BAKRAC: [Interpretation] Your Honours, first of all, I would
8 like to clarify my earlier statement. When I said we weren't able to
9 take any notes, I referred there only to one specific person. I name
10 that person in my previous statement. With one person we haven't had any
11 contact, and for the three remaining witnesses, we took notes, or we
12 actually prepared only brief versions of what they might testify about.
13 We did not have time to take full statements, but we will do that during
14 the break that we've been granted.
15 JUDGE ORIE: Now, irrespective of what finally the Chamber will
16 decide on adding witnesses to your 65 ter list, wouldn't it be wise to be
17 as transparent as possible to the Prosecution so that they know, more or
18 less, even before they receive any formal statements or any further
19 statements you may have taken that you already inform the Prosecution in
20 detail about what possibly or likely would be the subject matter of their
21 evidence, which might avoid a lot of problems in the future, perhaps even
22 problems that would influence the decision of the Chamber?
23 Ms. Marcus --
24 MR. BAKRAC: [Interpretation] Your Honours, with your
25 permission --
1 JUDGE ORIE: Yes. Perhaps, Ms. Marcus, before I give an
2 opportunity to you, I first give an opportunity to Mr. Bakrac to comment
3 on what I [overlapping speakers].
4 MR. BAKRAC: [Interpretation] Your Honours, my apologies. With
5 all due respect, I believe that we included together with our request to
6 have the 65 ter list amended that we provided the summaries of topics
7 that witnesses would be testifying about. If that is not sufficient, of
8 course we will do our best to expand the summaries and also to take
9 statements in accordance with 92 ter Rule, but I believe we have already
10 submitted the summaries with our request.
11 JUDGE ORIE: Including summaries of the evidence of witnesses you
12 have not ever interviewed yet, which of course raises some question
14 Ms. Marcus, is there anything you'd like to add what I just said?
15 MS. MARCUS: Your Honour, only to reiterate what we said in our
16 response which we filed on Monday, which is that witness statements are
17 described, actually at least for the two witnesses in -- in the motion
18 itself, in paragraphs 2 and 7 of the Defence motion, and that's what
19 particularly alerted us to this. But it does appear that for those
20 witnesses who have been interviewed, we would have more than a summary.
21 We would actually have, if -- if only a draft, we would have some kind of
22 a statement.
23 JUDGE ORIE: Yes. It may also influence your position on the
24 motion. Of course, you've responded to the motion, but further
25 developments on the matter.
1 MS. MARCUS: Yes, Your Honour.
2 JUDGE ORIE: Yes. Mr. Bakrac, I think the message is clear.
3 With such a late request, try to do everything to -- to avoid stronger
4 objection from the Prosecution by providing them with as much information
5 as they would need anyhow if the Chamber would allow you to call those
6 witnesses after having them added to the 65 ter list.
7 That matter having been --
8 MR. BAKRAC: [Interpretation] Thank you, Your Honour.
9 JUDGE ORIE: Then I have two items left on my agenda. Number 20
10 is any other matter. Number 21 is MFI list. I leave 21 until after the
12 Any other matter at this moment to be raised knowing that we'll
13 go through the MFI list anyhow?
14 MS. MARCUS: Nothing for the Prosecution, Your Honour.
15 JUDGE ORIE: Nothing for the Simatovic Defence, nothing for the
16 Stanisic Defence, I see. Then we'll take a break, and we'll resume at
18 --- Recess taken at 10.32 a.m.
19 --- On resuming at 11.08 a.m.
20 JUDGE ORIE: If everyone takes a deep breath, I'll now proceed to
21 the MFI list.
22 We start with P2979, the "Vreme" article. The main issue being
23 that the Stanisic Defence opposes admission for, if I could summarise it,
24 it being new evidence. The objection to admission is denied. Prejudice
25 has not been sufficiently demonstrated, and I immediately add to this
1 that even if it is admitted, the Chamber still has to consider the
2 appropriate weight to be given to it also considering that it's a
3 newspaper article.
4 P2995. I'd leave that, because it's a duplicate with D456. If I
5 say duplicate, that's not correct. It is an excerpt of D456. We'll deal
6 with the matter in relation to D456.
7 Ms. Marcus.
8 MS. MARCUS: My apologies for interrupting, Your Honour. Before
9 we move on to P2995, can we finish on the previous one, just because we
10 have uploaded a complete translation. That's for P2979 --
11 JUDGE ORIE: Let me see --
12 MS. MARCUS: -- before we leave that.
13 JUDGE ORIE: Yes.
14 MS. MARCUS: And then maybe if it's -- if it's going to be
15 admitted, we could -- we could admit with Your Honours' leave. So the --
16 the doc ID that we've uploaded it that -- that is the -- again the
17 complete translation of P2979. The doc ID is 0680-2610-ET, and so with
18 Your Honours' leave that can be attached to P2979 as it's admitted.
19 JUDGE ORIE: Madam Registrar, is this sufficient information for
20 you when we have given leave to have the new and complete translation to
21 replace the old one?
22 THE REGISTRAR: Yes, Your Honours, it is.
23 JUDGE ORIE: Then P2979 is admitted into evidence.
24 I dealt already with P2995, which means that this being an
25 excerpt of D456, we'll deal with that document when we are discussing
1 Defence MFI'd documents.
2 The next one is P3008, and I'd like to deal with that together
3 with P3009. The document -- both documents are supposed to be reduced to
4 the portions that were shown, possibly with any additional pages for
6 First of all, has that job been done?
7 MS. MARCUS: Just one moment, please, Your Honour.
8 JUDGE ORIE: I think the Stanisic Defence had time until the
9 1st of December to make any request for adding pages for
10 contextualisation. I don't know whether they --
11 MS. MARCUS: Your Honour, if I'm not mistaken, we tendered
12 certain excerpts. So what we tendered, I think from our position was
13 what was going to be admitted along with excerpts by the
14 Stanisic Defence, if I'm -- if I recall correctly.
15 [Trial Chamber and legal officer confer]
16 JUDGE ORIE: Let me -- I do understand that the Stanisic Defence
17 has suggested some additional documents to be -- to be admitted for
18 contextualisation but not to add them to this exhibit number but to make
19 them separate exhibits.
20 MR. JORDASH: Whatever is administratively easier, I think,
21 Your Honour.
22 JUDGE ORIE: Okay. We'll deal with that on the basis as you have
23 suggested. And the same is true for P3009, and of course if you add any
24 documents, separate documents, it doesn't make any difference whether you
25 do it to contextualise P3008 or P3009.
1 There was another objection in relation to the -- if I could say
2 the -- the Prlic appeal threshold, new evidence. No prejudice has been
3 sufficiently demonstrated to honour that objection, and therefore P3008
4 and P3009 are admitted into evidence.
5 MS. MARCUS: Excuse me, Your Honour.
6 JUDGE ORIE: Yes.
7 MS. MARCUS: I believe that we were -- that we were to upload the
8 excerpts, that -- that P3008 and -9 as admitted were the whole file, but
9 we were to upload the excerpts, and I have -- if that's correct, I have
10 65 ter numbers for the excerpts.
11 JUDGE ORIE: Yes, that's what I said in the beginning --
12 MS. MARCUS: Yes, I'm sorry --
13 JUDGE ORIE: -- to reduce the size --
14 MS. MARCUS: Yes.
15 JUDGE ORIE: -- and I misunderstood you where you said -- okay.
16 So we have for 3008 and 3009.
17 MS. MARCUS: Yes.
18 JUDGE ORIE: We have now new ID numbers.
19 MS. MARCUS: Yes, yes, Your Honour.
20 JUDGE ORIE: That the excerpts used with the witness should
21 replace now the whole of the document.
22 MS. MARCUS: Yes, Your Honour, that was -- it was my error, in
24 JUDGE ORIE: Yes.
25 MS. MARCUS: So 65 ter 6240.1 is -- can be uploaded for P3008.
1 JUDGE ORIE: And replaces then what was originally uploaded.
2 MS. MARCUS: Yes. And 65 ter 6241.1 can be uploaded to replace
4 JUDGE ORIE: And, Madam Registrar, you may replace these new
5 excerpts -- you may replace the old complete documents by these new
6 excerpts under those same numbers. Any further questions or is it clear
7 to you?
8 THE REGISTRAR: It's clear, Your Honour.
9 JUDGE ORIE: Thank you, Madam Registrar.
10 Then I move to the next one, P3029. Here we have the -- this is
11 in -- let me now see what ...
12 P3029 is, I do understand, a duplicate to P3038 and therefore can
13 be vacated. At the same time, the OTP wants two additional portions of
14 65 ter 6271 to be added to a related exhibit which is P3041, which is not
15 MFI'd but is already in evidence.
16 Now, these additional pages, do you want to have them admitted
17 separately or would you like to add them to P3041, which would then be
18 re-uploaded in its new version.
19 MS. MARCUS: Your Honour, I think for cross-referencing, it would
20 be ideal to have it in one document. I must confess I believe that the
21 additional portions have been uploaded with a separate 65 ter number.
22 Whichever the Chamber sees better, we can upload it together as one new
23 65 ter and inform Your Honours in a few minutes, or we can admit it
24 separately. Admit the additional portions separately.
25 JUDGE ORIE: I don't know which of the solutions would create
1 most of the problems in any future stages of these proceedings, if any,
2 but let's then -- if you would add the two additional portions to P3041,
3 re-upload that in its new version and then we'll instruct once you've
4 given the new doc ID, and we'll then instruct Madam Registrar to replace
5 the old version of P3041 by the newly uploaded one.
6 MS. MARCUS: Yes, Your Honour. We will do that.
7 JUDGE ORIE: So we'll hear from you.
8 P3032 can be taken from the list as marked, not admitted.
9 Madam Registrar, the status would therefore be MNA.
10 I move to P3056. There were some objections by the
11 Simatovic Defence. I do understand, Mr. Bakrac, that there are no
12 further objections against admission, which means that --
13 MR. BAKRAC: [Interpretation] That's correct, Your Honour.
14 JUDGE ORIE: -- P3056 is admitted into evidence.
15 I have to go back for a second to P3029, and I apologise for
16 that. What I did not address yet, Mr. Jordash, what -- that there was
17 also a new evidence Prlic threshold objection there. Would that be on
18 the adding of the two additional portions of 6271?
19 MR. JORDASH: Yes, I think that's right.
20 JUDGE ORIE: Yes. We have considered that, and the decision in
21 that respect, so we still have to wait for the new document to be
22 uploaded, but the decision in that respect is that no prejudice has been
23 sufficiently demonstrated and that therefore that objection is denied.
24 I now move on to -- yes, to P3063. An unredacted copy has yet to
25 be provided with the republic -- by the Republic of Serbia. I'd like to
1 use this document to give some general instructions to the parties.
2 There is a long-standing history of redacted copies being
3 provided by the Republic of Serbia. There have been a lot of requests to
4 provide unredacted copies. We left that mainly in the hands of the
5 parties in their negotiations with the Republic of Serbia, but we are
6 coming close to a point where to the extent unredacted copies have not
7 been provided, and many have been provided as we'll find out later, that
8 we'll have to make up our mind as whether the redactions are such that
9 they oppose admission, yes or no.
10 Another category of documents where there have been objections
11 consistently made are the documents provided by Mr. Stanisic.
12 The Chamber would like to receive joint submission by the parties
13 in which they express their views on -- in relation to every single
14 document. I mean, you can take a kind of a principled position, We do
15 not accept redacted copies. If, finally, we do not have unredacted
16 copies, then the question remains again whether the redactions really
17 oppose admission, yes or no, and that could cannot be answered in general
18 terms but depends on is it just one name which is redacted or is it a
19 redaction of half a page? So therefore the Chamber has prepared a simple
20 format for joint submissions on redacted MFIs and also a sample format
21 for joint submissions on MFI documents having been received from the
23 This may be distributed to the parties. It's -- it's not in
24 order to discuss it but to prepare for a final resolution of these two
25 categories of documents.
1 [Trial Chamber and legal officer confer]
2 JUDGE ORIE: Again, it's -- it's a sample format. If you'd
3 consider that it would need some changes, the Chamber would like to be
4 informed about it because of course we have drafted it on the basis of
5 what the Chamber thinks it needs to decide these matters. And we'd like
6 to receive such a joint submission within two weeks from now. Of course,
7 every party can already start discussing it. You can divide the labour
8 as to -- and whether the intensity of the redaction is low, medium, or
9 high, but it shouldn't cause great problems.
10 Is this clear? And this would be, I think, valid for P3063, and
11 I used that as -- for introducing these instructions to the parties.
12 MS. MARCUS: Thank you, Your Honour. Obviously the Prosecution
13 has a lot of experience with Word tables so I don't think that would be a
14 problem with that. The only comment I would make with respect to today
15 is that to the extent on the matter of documents received from the
16 accused, we have already expressed our view on that in -- and we are
17 ready to express that view. We've express it had in the chart. For
18 those documents, I don't think we would have any additional submission.
19 If Your Honours prefer for it to be transferred from the housekeeping
20 chart onto here, we're happy to do that. In other words, I recognise for
21 the redactions there's an additional question the Chamber is asking:
22 What happens if we don't ever get the unredacted version? I appreciate
23 that. But for those documents where we've already expressed our view as
24 of this point with respect to those documents received from the accused,
25 with respect, I believe those documents could be determined in this -- in
1 the context of this housekeeping session.
2 JUDGE ORIE: We'll have a further look at that.
3 I now move on to 3077, which I take it that the Chamber would
4 need to develop further thoughts on that, so I leave that for the time
6 P3080, that was a provenance issue. The Chamber understands that
7 the Stanisic Defence now takes the position that it is unable to give
8 further details of origin.
9 Is that the situation?
10 MR. JORDASH: Your Honour, yes.
11 JUDGE ORIE: Then if that's the case, it will be dealt with in
12 the format as suggested by -- the sample format as suggested by the
14 I move on to P3083. We do understand that there's now an upload
15 which is completed and which meets the wishes of all parties, that
16 there's no further Stanisic objection, that there's no further Simatovic
17 objection, and that therefore nothing opposes at this moment admission
18 any further. I hear no further comments.
19 Under the present circumstances, Madam Registrar, you have
20 received now the -- the precise format of the video uploaded -- or
21 provided to you, I should say.
22 THE REGISTRAR: Yes, Your Honour.
23 JUDGE ORIE: Then P3083 is admitted into evidence.
24 P3085. There was an issue as to how many pages would be
25 tendered, whether that would be all five of this document or just the
1 pages 1 and 5. Apart from that, there was no English translation
2 uploaded in e-court, although now it -- the translation issue apparently
3 has been resolved. There still remains the question whether it's all
4 five pages or pages 1 and 5.
5 MS. MARCUS: It's only pages 1 and 5, Your Honours, and they have
6 been uploaded as 65 ter 0693.1.
7 JUDGE ORIE: Any objections?
8 Madam Registrar --
9 MR. JORDASH: No.
10 JUDGE ORIE: Yes, the answer's no for both Defence teams.
11 Madam Registrar, you may replace the old version by the pages 1
12 and 5 that have been uploaded as 693.1, 65 ter. And P3085 is admitted
13 into evidence.
14 P3086, P3087, P3088, P3089, and P3090 are not further sought to
15 be admitted, and therefore, Madam Registrar, these documents are now
16 marked not admitted.
17 I move and to P3097, which is a list of members of the
18 State Security Service that received awards during the Kula ceremony, as
19 well as lists of JATD members. The issue was whether this was an
20 attachment to P1075, because the Stanisic Defence, I do understand now,
21 takes the position that it should have been attached to P1075; is that
22 correct, Mr. Jordash?
23 MR. JORDASH: That's correct.
24 JUDGE ORIE: Now, what are we going to do? Are we going to
25 attach it, although late, to P1075, or are we going to decide on
1 admission under a separate number?
2 Ms. Marcus.
3 MS. MARCUS: Yes, Your Honours. Our preference is that it be
4 attached. I have submissions on it if Your Honours would like to hear
5 that. But, yes, it's part of the same document. It's part of the same
6 ERN range. It was a mistake that it was separated into two documents.
7 We do apologise for that. In our submission I would explain how the
8 different indicia of it being an attachment of that document if that
9 would assist the Chamber.
10 JUDGE ORIE: Well, I think if everyone agrees that it's best
11 placed as an attachment to P1075, then we could proceed on that basis.
12 MR. JORDASH: Sorry, I think I misspoke. That's not our
13 position. Our position is that we're not satisfied as yet that it should
14 be or was attached to that document, and we would appreciate a better
15 explanation from the Prosecution.
16 JUDGE ORIE: Okay. Under those circumstances, Ms. Marcus.
17 MS. MARCUS: Yes, Your Honour. P3097 MFI is Prosecution
18 65 ter 4929. The Prosecution moved to add this document to its 65 ter
19 exhibit list in the seventh motion to amend that list of the
20 2nd of October, 2008. The ERN is the -- this document is the second part
21 of P1075, which was 65 ter 4236. The ERN full range is 0214-1322 to
23 As stated in the 21st October, 2010, Prosecution submission of
24 the chart of exhibits associated to the Theunens report, in relation to
25 P1075, this document, meaning the full ERN range, was provided to the OTP
1 by a high-ranking VJ official on the 22nd of November, 2001. The
2 Prosecution does not know why the document was severed, and this was
3 inadvertent. As stated on page 22 of the seventh motion to amend the
4 exhibit list with respect to 65 ter 4929, that is P3097 MFI, this
5 document is "a list of members of the DB that received awards during the
6 Kula ceremony as well as lists of JATD members referred to in
7 65 ter 4236."
8 Furthermore, I note that in P1075, under item 5, the lists
9 contained in P3097 MFI are described. For example, the words under
10 item 5 in P1075 "special daggers in an oak box for courage, six persons;
11 and for services, seven persons," those words correspond to e-court
12 page 5 in English, and page 4 in B/C/S, of P3097 MFI, which have two
13 lists, one for courage with six persons listed and one for merits with
14 seven persons.
15 As another example, the names in the last paragraph of P1075 are
16 all on these lists, Milan Letica, for example, is described in P1075 as
17 having been "liquidated," and in P3097 MFI Mr. Letica appears on the
18 "list of dead members." That's at e-court page 8 in English and page 7
19 in B/C/S.
20 The Prosecution agrees that P3097 MFI should have been tendered
21 as part of P1075, and we apologise for the inexplicable severing of the
22 full ERN range. If the Chamber requests, the Prosecution will seek leave
23 to re-open its case to tender this document into evidence.
24 Thank you.
25 JUDGE ORIE: Mr. Jordash.
1 MR. JORDASH: Might -- might we know who the high-ranking VJ
2 official is -- or was?
3 MS. MARCUS: Can I request private session, please?
4 JUDGE ORIE: We move into private session.
5 [Private session]
11 [Open session]
12 THE REGISTRAR: We're in open session, Your Honour.
13 JUDGE ORIE: Thank you, Madam Registrar.
14 Ms. Marcus, a few lines ago you said, "and furthermore with
15 respect to the other documents," which is not very clear to me at this
16 moment, you were referring to --
17 MS. MARCUS: Yes, Your Honour. I apologise. This was -- the
18 other document is -- is P3041 to which we were to add 65 ter 6271.2 so
19 that they would be together -- so that they would be together admitted as
20 P3041. We have, in fact, combined the document. It's been uploaded as
21 65 ter 6271.3.
22 JUDGE ORIE: Madam Registrar. You may replace the existing
23 document under P3041 by the now combined document uploaded as
24 65 ter 6271.3.
25 Having done all this, P3029 is vacated.
1 We'll finally decide on P1075 when we have received the new
2 65 ter number for the combined document, and we'll then also be able to
3 vacate P3097.
4 We move to the D exhibits. We start with D129.
5 Mr. Jordash, we dealt with that already in the first part --
6 MR. JORDASH: Yes.
7 JUDGE ORIE: -- of our discussions and you said within one hour,
8 and that's now.
9 MR. JORDASH: We inadvertently left it off the bar table. The
10 Prosecution have kindly agreed that we can tender it pursuant to the bar
11 table without objections, and we do so, apply to tender it, I beg your
13 JUDGE ORIE: Yes. Now I'll discuss with the staff whether --
14 it's now on the record that you want to tender it as a bar table
15 document, D129. Also that there's no objection against it. So I think
16 we could separately have it bar tabled orally and not try to get it into
17 any written bar table motions.
18 MR. JORDASH: Yes, please.
19 JUDGE ORIE: Then since I do not hear of any objections by the
20 Simatovic Defence, D129 is admitted into evidence.
21 MR. JORDASH: Thank you.
22 JUDGE ORIE: There is another one I referred to earlier,
23 Mr. Jordash, which was 1D1951, where we wondered whether that was
24 withdrawn or inadvertently missing from the bar table motion.
25 MR. JORDASH: It's withdrawn because it's a duplicate. I haven't
1 got the corresponding duplicate, but it's withdrawn.
2 JUDGE ORIE: Okay. Then it remains known under the doc ID and
3 not in any way assigned any number. I mean, it's not -- it has not
4 received any exhibit number, and therefore the status is neither MFI'd
5 nor admitted. It's non-existent in the evidentiary section.
6 For D130, D150, D159, D -- no. These three documents will be
7 dealt with in the bar table motion, as I understand it, Mr. Jordash. Is
8 that correctly understood?
9 MR. JORDASH: Your Honour, yes, thank you.
10 JUDGE ORIE: Therefore, it will be decided in a decision on the
11 bar table motion which covers these three documents.
12 D241. The -- there were two issues. The first was provenance.
13 The second was redactions.
14 The Chamber understands that the Stanisic Defence has provided to
15 the Prosecution information concerning the RFA, and further that an
16 unredacted version is now available. Then, of course, the question
17 remains whether there's any objection.
18 MS. MARCUS: No objection, Your Honour, except that we request
19 that the translations should match the unredacted versions.
20 JUDGE ORIE: That's always for whatever unredacted versions we'll
21 see passing by in the next one or two hours that the translations, of
22 course, have to correspond with the new unredacted versions.
23 Now let's see where we are. Mr. Jordash, has the unredacted
24 version been uploaded?
25 MR. JORDASH: Yes.
1 JUDGE ORIE: Is there a corresponding full translation now?
2 MR. JORDASH: No, they haven't. We're working on the
3 translations ourselves, so --
4 JUDGE ORIE: Which means that for D241 -- first of all, could you
5 give us the doc ID for the unredacted version.
6 [Defence counsel confer]
7 MR. JORDASH: It's the same 65 ter as the untranslated document
8 but with a .1 added corresponding.
9 JUDGE ORIE: Yes. Madam Registrar, you -- leave is granted to
10 have the original redacted copy of the 241 be replaced by the now
11 unredacted version which is known under the same doc ID with the addition
12 .1. However, the translation still has to be uploaded, which corresponds
13 with the new version, and therefore that's the only remaining issue now:
14 Upload of a corresponding translation. Apart from that, nothing opposes
16 I think, as a matter of fact, that the same may be true for D244,
17 the information about the request for assistance has been made available.
18 The unredacted version is now available, if I understand the information
20 Is it also true, Mr. Jordash, that the unredacted version is
21 uploaded under the same number as the redacted version with addition .1
22 and that there's no full translation corresponding now with the
23 unredacted version available.
24 MR. JORDASH: That's correct, Your Honour.
25 JUDGE ORIE: Yes. In that respect the report for D244 is the
1 same. The only remaining matter -- may I also take it that there are no
2 objections, Ms. Marcus.
3 MS. MARCUS: That's right, Your Honour. And the same is true for
5 JUDGE ORIE: Yes, for D247 we have exactly the same report,
6 unless, Mr. Jordash, you tell me there are differences.
7 MR. JORDASH: No, it's the same.
8 JUDGE ORIE: Then the only remaining matter is uploading the
9 corresponding translation after which the document will be admitted into
11 D271 is a chart with the comments of a witness on documents to be
12 tendered as evidence with that witness. The fate of D271 depends on what
13 happens with the underlying documents. The underlying documents are --
14 let me go through them. The underlying documents are D272 up to and
15 include D291, and the ones which have not yet been resolved are the
16 following: First, D276, Politika, Arkan's dossier dated the
17 22nd of January, 2000. The problem was that a full English translation
18 was missing. I do understand that it's available.
19 MR. JORDASH: It is. It's pending upload and we'll do that this
21 JUDGE ORIE: Yes. Now, there also was missing at the time a
22 B/C/S original in e-court. Is that available in e-court meanwhile?
23 MR. JORDASH: It is.
24 JUDGE ORIE: Yes. So therefore we are waiting for the uploading
25 of the full English translation, and then you have seen that translation
1 already, Ms. Marcus, or ...
2 MS. MARCUS: No, Your Honour. We haven't seen it, but as soon as
3 that's done we have no other remaining objections.
4 JUDGE ORIE: Yes. You say whatever the translation says, you
5 accept if it's a -- then therefore the only thing that still opposes D276
6 is the uploading of the English translation. After that, the document is
7 ready for being admitted.
8 Now, the other unresolved underlying document was -- I was just
9 informed, and I go back to D276 that the B/C/S is not uploaded into
11 MR. JORDASH: It's uploaded under 1D01604.
12 JUDGE ORIE: Madam Registrar, are you able to confirm?
13 THE REGISTRAR: Yes, Your Honours.
14 JUDGE ORIE: Thank you. So then the only remaining matter is
15 uploading the full English translation and then the document is ready for
16 being admitted.
17 D277. The Prosecution was seeking additional information on the
18 provenance of the document, information about who made the decisions
19 about what portions would be shown to the Chamber and what criteria were
20 used and how we can ensure that it was done accurately.
21 The information as we were informed has been provided,
22 Ms. Marcus.
23 MS. MARCUS: Yes, Your Honour. The information has been
24 provided, but it just heightens, in a way, our concern. Apparently, the
25 excerpts were selected by the BIA, and the Stanisic Defence has stated
1 that they might select further excerpts to be filed in a supplemental bar
2 table motion. I would just reiterate that our opposition to this
3 document remains. This opposition is based on a similar position we took
4 in relation to 1D380, which was tendered through the Stanisic Defence's
5 bar table motion. Namely, the Prosecution objects to the tendering of
6 selected excerpts of larger Serbian DB reports because it appears the
7 Defence would like to make broad conclusions based on these types of
8 documents which may not be supported if the Chamber was able to view the
9 entire report. As such, excerpts of these DB reports are potentially
10 misleading, have low probative value, and are not reliable in their
11 present form. The Prosecution also seeks to review the full document and
12 requests additional excerpts, where necessary, to provide context to the
13 excerpts submitted by the Stanisic Defence. The Prosecution requests
14 that the Stanisic Defence acquire the entire document to the extent they
15 already have it, since they indicated they may be selecting additional
16 excerpts. We would like to view that entire document so that we can also
17 select any portions we deem relevant.
18 JUDGE ORIE: Mr. Jordash.
19 MR. JORDASH: I think the -- it's our submission the Prosecution
20 approach is wholly at odds with the disclosure regime, and we would
21 submit the following: What -- we'd ask certain questions which
22 demonstrate our position. First of all, have the Prosecution, during
23 their case, sought to admit parts of larger documents? The answer is
24 that is yes.
25 Two --
1 JUDGE ORIE: Could I immediately then -- do you mean to say that
2 they have sought to admit parts of larger documents without disclosing
3 the content of the whole of the document to the Defence? Is that what
4 your question is about?
5 MR. JORDASH: No. My question is that -- if I can summarise.
6 The -- our position is that the Prosecution are entitled to seek to admit
7 documents in support of their case or part documents in support of their
8 case, and that's what they've done. We, the Defence, are equally
9 entitled to do the same and we have no obligation. In fact, I'll go
10 further than that. We are not permitted to disclose documents or parts
11 of documents which do not support our case. We are ethically bound not
12 to do that. If the Prosecution say that we have admitted documents which
13 support our case only or parts of documents which support our case only,
14 we accept that. That's what our ethical obligation is. If the
15 Prosecution suggest that there are documents or parts of documents which,
16 in fact, would remove the probative value of our evidence, then they are
17 entitled to find that material and then in the usual way apply to admit
18 it, if the Rules of disclosure allow that admission. We cannot expected,
19 the Defence, to find documents or parts of documents which support our
20 case and then find documents which -- or parts of documents which don't
21 support our case and then apply to admit that material. It would be
22 completely against our ethical obligations.
23 JUDGE ORIE: I think I understand what your submission is,
24 Mr. Jordash. What the Prosecution does at this moment is say that
25 there's such a risk of the excerpts or the portions shown to mislead that
1 without any possibility to verification of -- of possibly misleading
2 selection, we oppose admission. That's how I understand the
3 Prosecution's position.
4 MS. MARCUS: That's correct, Your Honour.
5 JUDGE ORIE: And I do understand that if a document contains both
6 exculpatory and inculpatory elements, that the Defence would wish to
7 select the exculpatory elements and leave out any inculpatory
8 information. At the same time, they may risk under those circumstances
9 that the selection is not admitted. I'm not saying whether it will or
10 not, but at least that there's a possibility that on the basis of the
11 objection that the Chamber would say, Yes, we are unable to verify
12 whether this gives a picture which is appropriate.
13 Let me give you an example. If there is a report in which it
14 says that debtor A has always fully paid his debts, and if later in the
15 report it is said that this is true for the period up 1984 and then after
16 that he never paid a penny of what he was indebted, then of course, if
17 you select the line, he always pays his debts, it may be rather
18 misleading. And I think that's the kind of discussion we find ourselves
20 MR. JORDASH: But I don't think we are in that discussion until
21 the Prosecution -- I accept the logic of Your Honour's comments, but
22 we're not into that discussion until the Prosecution points out evidence
23 or material which would lead one to a reasonable at least prima facie
24 decision that there is other material there which suggests that the
25 material we seek to admit provides a misleading picture. At the moment,
1 all we have is the Defence seeking to adduce exculpatory material and the
2 Prosecution saying, But there must be evidence which contextualises that
3 and shows that it's not in fact exculpatory. Otherwise what we're
4 dealing with is the Defence suggesting innocence and the Prosecution
5 saying, Well, hold on a second. We know your clients are guilty,
6 therefore, there must be material in the remainder of document which
7 demonstrates that. It's assertion but without precision.
8 JUDGE ORIE: Apparently the discussion is then whether by
9 presenting a selection of documents whether without giving the full
10 documents, whether the burden is upon the Prosecution to say that there's
11 other evidence which would contradict it and please come up with it or
12 whether that would be true if you present the full documents. If the
13 Prosecution then would say, But we don't believe it because there must be
14 other evidence, that here it's clear that a selection was made and that
15 there's no possibility to verify whether the selection reflects the gist
16 of the document. That apparently is the problem.
17 MR. JORDASH: Well there has been a possibility because the
18 Prosecution have known -- first of all, the Prosecution has investigated
19 this case a long time before we did. Secondly, we've indicated our
20 position on this from a long time ago. We've always said, and of course
21 we would always say, But it's not our job to find evidence which
22 "contextualises Defence in exculpatory evidence." So it's entirely a
23 matter for the Prosecution to go and seek that. Equally, it's our
24 responsibility when the Prosecution adduce evidence for us to go and seek
25 evidence to rebut that. I don't think the situation is any different to
1 the Prosecution admitting documents to incriminate and providing us with
2 the basis of then leading to the logical position that we, the Defence,
3 need to try to rebut that.
4 JUDGE ORIE: Well, at least they give access to any document they
5 want to use in its entirety to the Defence.
6 MR. JORDASH: But if the Prosecution are burdened to prove their
7 case, they must do that. We, the Defence, don't have that burden. But
8 even if we did, the Prosecution have the same access to these documents
9 as we do. In fact, they have better access because they have a better
10 relationship with the prevailing government.
11 JUDGE ORIE: Ms. Marcus, could you specifically respond to the
12 last observation that you have equally access to these documents, so why
13 don't you look for yourself what the entirety of the document tells us.
14 MS. MARCUS: Your Honour, we don't have the document. We can --
15 if the Chamber so orders, we can submit a request for the document. The
16 question that -- that this all boils down to from the Prosecution
17 position is that this is about the tendering of a document into evidence.
18 So this is about a Defence document that they wish to tender into
19 evidence. For their documents that they wish to tender, they have the
20 burden of proving that the documents are reliable, just like with any
21 other document that they have the burden. It's not the Prosecution's
22 obligation to show that the document is unreliable. It's to us to object
23 if we don't find sufficient indicia of reliability in that document and
24 to -- for the Defence to affirmatively prove, as they do with all their
25 documents, that a document is reliable. Without a way for the Chamber or
1 the Prosecution to review where these excerpts came from the indicia of
2 reliability are not sufficient, in our submission, for the excerpts to be
3 admitted. That's the focus of the objection, Your Honour.
4 JUDGE ORIE: Mr. Jordash, one final one minute.
5 MR. JORDASH: But -- but that -- that is not what we're talking
6 about here. Time and time again during the Prosecution case and the
7 Defence case, the Prosecution have said, We obtained this document from
8 the Serbian government. Therefore, it crosses the reliability threshold.
9 These documents are clearly from the Serbian government and therefore
10 cross that threshold.
11 MS. MARCUS: But, Your Honour it's a piece of a document
12 received. Your Honours have made the point. That's why I haven't
13 repeated the point. We have never tendered an excerpt of a document
14 without showing the entire context of that -- that that excerpt was taken
15 from and the Defence is most often given an opportunity to select their
16 excerpts also from that document.
17 MR. JORDASH: But, sorry, just to -- if I may. We told the
18 Prosecution this was our position many, month ago. We simply -- and
19 these are specific types of documents which are annual reports with have
20 a huge amount of material in them. We simply cannot do more than say to
21 the Prosecution, This is our position. You should use your resources to
22 go and find these documents and look at them. We are not hiding
23 anything. There isn't incriminatory evidence in these documents. We've
24 looked at them. But --
25 JUDGE ORIE: Why then --
1 MR. JORDASH: Because -- because to obtain them, to copy them
2 from the -- first of all, because the Serbian government doesn't want to
3 release the documents as a whole. That's always been their position
4 because the annual reports of the state security clearly are of a very
5 sensitive nature to the Serbian government. That is why we applied for
6 Rule 54 order. That is why we came to an agreement with the Prosecution
7 and the Serbian government that we would go and look at the documents.
8 At that point in time, we said to the Prosecution, We are not going to be
9 able to get you whole of the documents. You must go and have a look at
10 them too. We're not hiding anything. The Prosecution have chosen not to
11 do that. The Prosecution have chose instead to object, making what are
12 effectively implied assertions that we're hiding something. And we
13 haven't. We've said, Go and find it and we'll deal with you are
14 producing contextualising evidence if, indeed, you find that. This is a
15 complaint without substance, in my submission.
16 JUDGE ORIE: I think the issue is clear. The Chamber will -- I
17 don't think there will be an agreement among the parties on this matter
18 and the Chamber will consider it and decide.
19 Yes. I think we now move to D279, decision on approval of
20 operational process on Miljkovic. Provenance was the issue. I do
21 understand that the request for assistance has been provided. If that's
22 true, are there any objections, Ms. Marcus?
23 MS. MARCUS: No objection.
24 JUDGE ORIE: Also no objections from the Simatovic Defence. D279
25 is admitted into evidence. Any need to have it under seal? No. Then
1 it's a public exhibit.
2 D291, there was an issue with redactions. The last I read is
3 that meanwhile an unredacted version has been provided. Is that
5 MR. JORDASH: It is, and the case is the same with the
7 JUDGE ORIE: The case is the same with the translation, which
8 means that the -- Ms. Marcus, that having now received the unredacted
9 version, any further objections apart from a missing translation?
10 MS. MARCUS: Your Honours, it appears that there's still a
11 redaction on the last page of the document.
12 JUDGE ORIE: And is that such a redaction that would --
13 MS. MARCUS: It's the same type of redaction, Your Honour, that
14 generally we all oppose. So it's a very similar one. It's only one
15 remaining but it is a -- it is still.
16 MR. JORDASH: If there is a redaction, and we accept there is,
17 it's -- the response from the Serbian government is that it's a permanent
18 redaction and there's nothing that they can do about it.
19 JUDGE ORIE: Ms. Marcus.
20 MS. MARCUS: I propose that we look at this in the context of the
21 Chamber's instructions.
22 JUDGE ORIE: Yes. Okay, then we're waiting for a corresponding
23 translation of the almost unredacted document, and it's on the record
24 that the government of Serbia says that it cannot remove the redaction
1 This also means that not all of the matters of underlying
2 documents have been resolved in relation to D271, which means the fate of
3 D271 now depends on how we resolve D277 and D291, and the others, to the
4 extent not resolved, it's a pure technicalities in relation to
6 I move on to D293. I do understand that, Ms. Marcus, the
7 Prosecution would like to see the RFA in relation to this document. And
8 our latest information is, Mr. Jordash, that you're still waiting for
9 what exactly?
10 MR. JORDASH: Waiting an answer from the national council,
11 Your Honours.
12 JUDGE ORIE: Yes. You'd say this is a RFA which you have not
13 received the response on yet.
14 MR. JORDASH: Indeed.
15 JUDGE ORIE: Yes, which -- this enables us to take the matter any
16 further at the moment.
17 D301 is a chart, and the fate of this chart depends on the fate
18 of the underlying documents D302 up to and including D311.
19 Let's start with D302. There was an issue. The OTP expressed
20 concerns about this being a statement of an other individual not called
21 to testify, but also understand that the objections are not further
22 upheld by the Prosecution. Is that -- or is it that we -- that you are
23 still waiting for further submissions by the Stanisic Defence?
24 MS. MARCUS: One previous moment, Your Honour.
25 [Prosecution counsel confer]
1 MS. MARCUS: We have no further objection Your Honour.
2 JUDGE ORIE: No further objections. D302 is admitted into
4 D303 it is together with -- let me take it one by one. D303, the
5 issue was provenance. I do understand that the provenance info has been
6 provided. Ms. Marcus.
7 MS. MARCUS: Yes. We withdraw our objection to D303 and D307.
8 JUDGE ORIE: Yes. D303 is admitted into evidence. D307 is
9 admitted into evidence as well.
10 Now, for D304, our latest information is that no provenance info
11 has been provided yet.
12 MS. MARCUS: That's correct, Your Honour.
13 JUDGE ORIE: Yes. Which means that we can't -- that the
14 Prosecution still objects admission.
15 MS. MARCUS: Correct, Your Honour.
16 JUDGE ORIE: We can't take this any further at this very moment.
17 D305 is still waiting for provenance info, and therefore the
18 Prosecution is still objecting. At the same time, I do understand that
19 apart from admission, that there is a corrected English translation for
20 this document uploaded. Is that true, Mr. Jordash?
21 MR. JORDASH: Yes, it is.
22 JUDGE ORIE: Then could you give us the number under which the
23 corrected English translation is uploaded.
24 MR. JORDASH: It's already attached in e-court, Your Honour.
25 JUDGE ORIE: It's already attached in e-court. Madam Registrar,
1 therefore the corrected English translation then replaces the original
2 English translation but the document still remains MFI'd.
3 D306, no further information as to provenance. Therefore,
4 unresolved. Then the same would be true for D308, for D309, and for
5 D310, and D311.
6 I hear of no comments.
7 MR. JORDASH: Yes.
8 JUDGE ORIE: Then I -- this means that the fate of D301 is still
9 awaiting a solution of most of the underlying documents.
10 I move to D319, a video showing Milan Babic and Milorad Pupovac.
11 The issue was that no CD was ever given for -- to the Registry.
12 Therefore, the video, although being shown, apparently is not in the
14 Now, I do understand that this video was re-tendered on the
15 15th of December, 2011, with Witness DFS-014 and that the OTP then
16 objected to admission due to the heavy editing of this video. But
17 whatever the objections are, the first very technical matter is whether
18 the material is available in the system.
19 THE REGISTRAR: Yes, Your Honour. It was provided to the
21 JUDGE ORIE: Yes. So that has been resolved.
22 Now, as far as the objections are concerned, do they still stand,
23 and what is the position of the Simatovic Defence?
24 MS. MARCUS: Your Honours, from the Prosecution perspective our
25 view is that we've made all our submissions on the record and that the
1 decision is in the Chamber's hands. We do maintain our objection for the
2 reasons that we've already set out.
3 JUDGE ORIE: Mr. Bakrac.
4 MR. BAKRAC: [Interpretation] Your Honours, we remain in the same
5 position which is already on the record, and we agree with our learned
6 friend that the decision is upon us.
7 THE INTERPRETER: Interpreter's correction: The decision is to
8 be yours.
9 [Trial Chamber and legal officer confer]
10 JUDGE ORIE: When I earlier said that the technical problem had
11 been resolved, this may be true for providing the electronic version of
12 the video, but I do understand that an English translation and perhaps
13 also a surrogate sheet are still not in the system. So for us to decide
14 the matter without having access to a translation of what is said is not
15 easy, Mr. Bakrac, or are we supposed not to listen to it and only to look
16 at it?
17 MR. BAKRAC: [Interpretation] Your Honours, if you allow me, I see
18 that we are near the break, so I would inform you after the break. Let
19 me just check, and we will enter int into the system, whatever we can do
20 on our part. We will resolve the technical problem, but here my
21 colleague is telling me that we have already done that and that it has
22 been uploaded, everything.
23 JUDGE ORIE: Include an English translation?
24 MR. BAKRAC: [Interpretation] Yes, including the English
25 translation, Your Honours.
1 JUDGE ORIE: Madam Registrar, are you able to confirm that an
2 English translation is attached to this video.
3 THE REGISTRAR: Your Honour, I cannot see it in e-court. I need
4 reference to the number -- under which number it was recorded.
5 MR. BAKRAC: [Interpretation] 872.1, 2, and 3. 2D872.
6 JUDGE ORIE: Madam Registrar, can you confirm that the English
7 translation was uploaded?
8 THE REGISTRAR: Your Honour, I'm not completely certain. There
9 are several English translations under number 1, 2, and 3. Which one is
10 to be attached to the document?
11 JUDGE ORIE: Perhaps that is a matter to be resolved during the
12 break, because the Chamber would be hesitant to pick and choose an
13 English translation out of a multiple-choice situation.
14 I suggest that we take a break, and that we resume at 10 minutes
15 to 1.00. I don't know whether we'll be able to resolve anything in this
16 morning's session. If not, we'll have to consider to continue this
17 afternoon for hopefully not more than a half or three-quarters of a
18 session to get through the whole of the list.
19 We resume at ten minutes to 1.00.
20 --- Recess taken at 12.31 p.m.
21 --- On resuming at 1.02 p.m.
22 JUDGE ORIE: I resume where we left before the break. That was
23 about the English translations to D319, if I'm not mistaken. Has the
24 matter as whether English translations have been uploaded and how many
25 has there been resolved?
1 MR. BAKRAC: [Interpretation] Your Honour, the outcome is not
2 optimistic for the time being. There is a technical problem; namely, we
3 have uploaded the English translations but under 1D number we have three
4 video-clips and three translations. So we have to have another look to
5 see whether they have been submitted to the Registry separately, so I
6 would ask for this issue to be technically resolved at the first
7 following session, or that is to say, by the next time we have a hearing
8 the problem will be technically resolved.
9 JUDGE ORIE: Yes. That's the technical aspects and then of
10 course the heavy editing remains, but that is then for after we have seen
12 I move on to D330. Provenance. Any update in relation to D330
13 where the Stanisic Defence was to provide provenance info?
14 MR. JORDASH: We've made the request and are waiting for the
15 national council.
16 JUDGE ORIE: Yes. Which means that it will not bring us any
17 further at this moment.
18 D357. There provenance was an issue as well. Now, I do
19 understand that the Stanisic Defence has been informed that the national
20 council has no copy of the document involved?
21 MR. JORDASH: That's right, Your Honour.
22 JUDGE ORIE: Yes. Now, there also was a 54 bis issue which is
23 usually related to sensitive documents. I was asking myself to what
24 extent -- is it just the order to a state or is there any sensitivity
25 issue related there, because if you don't have a copy of the document, it
1 may be difficult to raise any sensitivity or security issues.
2 MR. JORDASH: We have a copy of the document. We attempted to --
3 sorry, I'm not clear what Your Honour's asking me.
4 JUDGE ORIE: Well, 54 bis is an order which often -- order to a
5 state which often includes matters of state security concerns, et cetera.
6 Now, does this play a role, or is it mainly that you asked for -- that
7 you just want a copy and that no concern about state security has been
8 raised in this context?
9 MR. JORDASH: I don't think we've had any issue raised about
10 state security.
11 JUDGE ORIE: It's about redaction. Well, of course, redactions
12 are often related to state security, but in seeking an unredacted copy,
13 whereas the redaction usually is linked to a state security issue, that
14 the answer was, We don't have the original document. Now, is that
15 document redacted in a similar way as many other documents --
16 MR. JORDASH: No.
17 JUDGE ORIE: -- because then it's different.
18 MR. JORDASH: I don't think there's any -- well, there must be a
19 redaction, but I -- I -- there's a small redaction in the top left-hand
20 corner. It looks like a name or something like that. It's -- it's one
21 inch long, that's it.
22 JUDGE ORIE: Yes, okay. Then we can't take it any further at
23 this moment, and it may finally appear on the joint submission on -- on
24 redacted documents.
25 I move on to D360. I do understand that the information about
1 provenance has been provided and that meanwhile an unredacted version is
2 provided as well.
3 Translation, a corresponding translation already being -- been
5 MR. JORDASH: We haven't as yet translated the document. So
6 we're in the same position as the earlier one.
7 JUDGE ORIE: Same position.
8 Is the Prosecution already in a position to tell us whether on
9 the basis of what is now known that it would still object or whether it
10 would not object any further?
11 MS. MARCUS: We withdraw our objection, Your Honour.
12 JUDGE ORIE: Objections are withdrawn. So the one and only
13 remaining issue for D360 is to have an unredacted copy and a
14 corresponding translation in the e-court system.
15 D361 seems to be similar, that is, provenance clear now,
16 redaction -- unredacted copy available. As far as objection is
17 concerned, Ms. Marcus?
18 MS. MARCUS: Same position, Your Honour.
19 JUDGE ORIE: Same position. Which means that for D361, the only
20 remaining problem is an unredacted version uploaded with a corresponding
22 D362. Provenance inform. Has it been provided meanwhile?
23 MR. JORDASH: Still pending with the national council.
24 JUDGE ORIE: Still pending. So we can't take it any further at
25 this very moment.
1 D364. The -- I do understand that the Prosecution has no further
2 objections against admission. The Chamber raised an issue that the
3 temporal and geographic scope of the instruction was unclear.
4 Any further observations to be made.
5 MS. MARCUS: Your Honour, unfortunately we have not been able to
6 gather any additional information about the origin of the document. It
7 is in our collection but the information entered there is -- it simply
8 says it's unknown. So we don't know where it came from.
9 JUDGE ORIE: Does that mean that you do not object, although the
10 source is unknown or comes from your own system?
11 MS. MARCUS: We don't object because of how the document looks on
12 its face, not because it came from our system, but we don't object
13 because of the document itself.
14 JUDGE ORIE: Yes. Then the observations I made in respect to
15 this document concern weight rather than admissibility. In the absence
16 of any further objections, D364 is admitted into evidence.
17 D365. Same report as D362, Mr. Jordash, waiting for --
18 MR. JORDASH: Your Honour, yes.
19 JUDGE ORIE: Yes. We should try to speed that up in one way or
21 D366, same report, Mr. Jordash?
22 MR. JORDASH: Yes, Your Honour.
23 JUDGE ORIE: It will not take us any further.
24 D372 is a chart, and the fate of this chart seems to depend on
25 D375 where we do understand that for D375 an unredacted copy has now been
1 provided and that the -- what's the position of the OTP?
2 MS. MARCUS: Your Honours, we have no further objections either
3 to D375 or to D372 as a consequence of the former. Obviously there's
4 still the translation of the redaction -- redacted document issue that's
5 pending, but in our view D372 can be admitted if the Chamber would like
6 to do so.
7 JUDGE ORIE: Yes. D372 is admitted into evidence.
8 D375. The only remaining issue is that the unredacted copy, once
9 uploaded, is accompanied by a corresponding translation. Nothing else is
10 in the way of admitting it. The description, by the way, in D375, it
11 starts "Official Gazette Serbia." That may need some reconsideration
12 whether these first three words are accurate or not.
13 I move on to D382. Any update? It is a document which is
14 tendered by the Simatovic Defence, although it originates from the
15 Stanisic Defence.
16 MR. BAKRAC: [Interpretation] Your Honours, we are waiting to
17 receive the original from the Croatian government. As soon as we have
18 it, we will upload it.
19 JUDGE ORIE: Yes. You know, Mr. -- Mr. Bakrac that if you need
20 any support by the Chamber in order to achieve better results with
21 whatever government, don't hesitate to ask us.
22 I move to D388, which is a chart, and its fate may depend on
23 D394, which is one of the underlying documents. Provenance info still
24 from the national council. Is it there, Mr. Jordash, or not?
25 MR. JORDASH: Not yet.
1 JUDGE ORIE: Not yet, which means that D388 and D394 remain on
2 our MFI list.
3 Then I have a chart and underlying documents in the range of D424
4 up to D443, but D424 is the chart, but the underlying documents may
5 determine the fate of this chart, the underlying documents being D425 up
6 to and including D445.
7 Let's deal with the individual underlying documents. The first
8 on this chart is D425. Provenance problems apparently were raised. Any
9 solution for that?
10 Mr. Jordash.
11 MR. JORDASH: Could I just have a moment, please. The -- the
12 objections are there -- sorry, our position is outlined at D424.
13 Those -- that position details a number of submissions which were part of
14 a -- submissions on the 21st of March, page 52 of the chart.
15 JUDGE ORIE: I am ...
16 [Trial Chamber and legal officer confer]
17 JUDGE ORIE: Yes. And now I'm supposed to look at filings and
18 submissions of yesterday and et cetera. I'm not easily confused, and I'm
19 not saying that I am yet but coming close to it.
20 425, we understand that the provenance issue has not been
21 resolved because you have no further information.
22 MR. JORDASH: That's right. We're waiting for the national
24 JUDGE ORIE: Okay. So that is not resolved.
25 D427, we do understand that the Prosecution has no further
1 objections in relation to provenance but that relevance remains an issue
2 and also that it was not on the 65 ter list of the Defence.
3 Ms. Marcus, is that it?
4 MS. MARCUS: That's correct, Your Honour.
5 JUDGE ORIE: Now, whether it was or not on the 65 ter list, of
6 course you link that to relevance. What's the specific concern about the
7 relevance? It's about comments or ...
8 MS. MARCUS: Your Honour, I would have to check to be able to
9 answer this further in court. I know it was contained in the response we
10 filed on Friday, the 23rd of March.
11 JUDGE ORIE: Yes. I suggest the following: That in order not to
12 lose too much time that we would, for the time being, suspend our
13 discussions on D424 and underlying documents and that we move on and see
14 whether perhaps this afternoon we are more successful in dealing with
15 that one.
16 The next one then on my list would be D449, which is a request to
17 be admitted in the service. The objection against admission is this is
18 one out of 375 files and that the 375 files would give the context and
19 the parties would try to find a balanced solution for that.
20 Now, Ms. Marcus, is it still the Prosecution's position that it
21 should be all that 375 to be admitted, or is there any agreement about
22 finding a fair balance between only one or 375 requests to be admitted?
23 MS. MARCUS: Your Honour, I believe that this D449 is one
24 document that was contained in the whole of that personnel file tendered
25 by the Stanisic Defence in the bar table motion. So then we withdraw our
1 objection if the whole file is in, and I know that we did not object to
2 the tendering of the entire file in the context of the bar table motion.
3 JUDGE ORIE: Mr. Jordash, can you confirm that -- I have -- let
4 me read what I have on my note. That there was an objection to admission
5 in isolation. It's one of 375 files which give context. Does that mean
6 that all the remaining files are requests to be admitted into service by
7 other persons, or I can't imagine that one person requests to be admitted
8 375 times. Could I --
9 MR. JORDASH: I think the 375 files refers to the totality of all
10 the personnel files obtained by the Prosecution. So to that extent, that
11 number and that issue doesn't impact on this issue of whether one
12 document from one file should be admitted or the whole file consisting of
13 five pages. But in relation to the 375 files, what's happened so far is
14 that the Prosecution on -- during the case, the Prosecution and the
15 parties have applied to admit various portions or various personnel files
16 and the Stanisic Defence has responded to that in the second bar table
17 and selected a number of additional files which we thought supported our
18 position, which I won't go into now. I don't think it's strictly
19 relevant. I haven't as yet read what the Prosecution's response is to
20 that, but I think we are nearing a final agreement as to what should be
21 in evidence.
22 In relation to this point, we -- we maintain our position that
23 one page was used from this personnel file with this particular witness
24 to demonstrate format. The Prosecution now seek, as I understand it, to
25 add five -- sorry, four other pages not for format reasons but for other
1 reasons which would seem to be an odd approach to move from former to
2 content with an argument that the content was necessary to contextualise
3 the former point, which is, as I understand it, not is -- is somewhat
5 JUDGE ORIE: Ms. Marcus.
6 MS. MARCUS: Your Honour, the entire personnel file for this
7 individual was tendered by the Stanisic Defence as 65 ter 1D5312. So
8 D449 is one page of 65 ter 1D5312. I actually think we're arguing over
9 nothing. We do not oppose the admission of the entire file as tendered
10 by the Stanisic Defence in their bar table motion - by the way, referring
11 to relevance much beyond just formatting - and so therefore it's in the
12 Chamber's hands. If the Chamber wishes to vacate D449 insofar as it is
13 an excerpt of the whole file, which is 65 ter 1D5312, we have no problem
14 with that. If for the sake of cross-referencing, as we've done
15 otherwise, the Chamber would like to admit D449 as an excerpt of that
16 larger file. We have no problem with that. The only caveat I would put
17 on the record is that if the excerpt is admitted and if the Chamber does
18 not admit, in spite of both parties agreeing on admission -- if the
19 Chamber decides not to admit 65 ter 1D5312, then we would probably file
20 for that to be admitted in a rebuttal bar table motion. Thank you.
21 JUDGE ORIE: Mr. Jordash.
22 MR. JORDASH: Well, if it's in a bar table motion, then we
23 obviously don't object.
24 JUDGE ORIE: Okay. Then let's be very practical. Could it be
25 verified that the whole of the file in relation to this person has been
1 uploaded as 65 ter 1D5312?
2 MR. JORDASH: Yes, it has.
3 JUDGE ORIE: Yes. Then I'd suggest the following solution: That
4 the document uploaded, D449, which is an excerpt, will now be replaced by
5 65 ter 1D5312, that we decide on admission now. If it's part of your bar
6 table submission, Mr. Jordash, you would agree. Prosecution has --
7 Prosecution has just expressed as its view that it would not oppose the
8 whole of the file of which D449 is now an excerpt to be uploaded and that
9 the problem would be resolved by that.
10 MS. MARCUS: Yes, Your Honour. I fully agree. I just want to
11 mention since we're -- appear to be disposing of the issue right now that
12 we added a comment in our response to the bar table motion in respect of
13 a last page of the file but that was just a mistake. We see that the
14 document that's uploaded as 65 ter 1D5312 is properly and appropriately
15 the whole file. I just wanted to make sure --
16 JUDGE ORIE: Okay.
17 MS. MARCUS: -- that we put that piece on the record.
18 JUDGE ORIE: That's now on the record. That document is now
19 replacing what was earlier found under D449. And D449, new version, is
20 admitted into evidence.
21 I move on to a chart, D45 -- let me just have a look.
22 I now move on to documents related to D451 -- no. Let me
23 just ...
24 I'll take them one by one. D452 is a chart, the fate of which
25 depends on the underlying documents -- the underlying documents found in
1 a different range. D541 to D558. There were three documents remaining
2 there which were objected to, which is D552, D553, and D557. Objections
3 were based on redactions. Now, I do understand that unredacted versions
4 of D552, D553, and D557 have been provided.
5 In this situation, Ms. Marcus, are there any further objections
6 to D552, D553, and D557?
7 MS. MARCUS: No further objections, Your Honours.
8 JUDGE ORIE: Which means that all of the documents underlying the
9 chart found in D452 have now been resolved, and therefore D452 seems to
10 be ready for admission as well.
11 MS. MARCUS: The only exception I would add, Your Honour, is for
12 D443, where we maintain our objection to reliability.
13 JUDGE ORIE: D443 is not on my list of underlying documents for
14 D452, because the range of underlying documents is D541 through D558.
15 [Trial Chamber and legal officer confer]
16 JUDGE ORIE: We come to 443 soon, Ms. Marcus, but as matters
17 stand now --
18 MS. MARCUS: Yes, other than that, Your Honour, I think all the
19 other underlying documents can be admitted.
20 JUDGE ORIE: Yes. Which also means that nothing opposes the
21 admission of D452.
22 MS. MARCUS: Well, there is the one under -- the one underlying
23 documents, D443, Your Honour. But I'm happy withdraw the objection to
24 the chart and we can deal with the underlying document separately.
25 JUDGE ORIE: I don't have that one on my list which appears in a
1 memo sent on the 29th of November by our court officer, which gives
2 pre-assigned exhibit numbers pursuant to the Trial Chamber's oral
3 decision dated the 28th of November. There I do not find the number you
4 just mentioned, and I understand that this is the range of underlying
5 documents covered by D452.
6 MS. MARCUS: Your Honour, I actually think I made a mistake. I
7 think I had the wrong note here. It seems that D443 is part of the other
8 chart for the other witness that Your Honours has said we will talk about
10 JUDGE ORIE: Yes.
11 MS. MARCUS: That's for D424. So I apologise. There's nothing
12 blocking admission right now.
13 JUDGE ORIE: Well, I usually do express myself and the parties
14 how exceptional mistakes are, Ms. Marcus, but the same thought, as with
15 our court officer, came to my mind.
16 Let me then -- which means that D541 through D558 are admitted
17 into evidence with three small exceptions; that is, D552 still needs a
18 corresponding translation to the unredacted version. The same is true
19 for D553 and D557. So those three still have to be finalised. All the
20 others are admitted into evidence definitely. It also means that D452
21 and the expectation that such a corresponding translation will appear
22 sooner or later is admitted into evidence as well.
23 I now move to D454, a video. The first issue is whether there's
24 any information about the source, source of the video. Has this been
25 clarified, Mr. Bakrac?
1 MR. BAKRAC: [Interpretation] Your Honour, yes. To speed things
2 along, I would like to say that we have corresponded with the OTP, and I
3 can see that they have given up on their objection, at least judging by
4 their list.
5 JUDGE ORIE: Ms. Marcus.
6 MS. MARCUS: That's correct, Your Honour. We would just request
7 that there be some way in the record to reference what portion -- so
8 there's no time code. There's no indication of -- of which portion it
9 was. We dropped our objection because it's apparently open-source
10 material and so we -- that's the reason that we dropped our objection.
11 So we don't object to the portion that was played in court being
12 tendered. Perhaps there is some way to indicate what exactly it is. The
13 record is difficult to follow in terms of what -- what it's a piece of,
14 et cetera, and which piece.
15 JUDGE ORIE: Yes. Mr. Bakrac, could you help us out.
16 MR. BAKRAC: [Interpretation] Yes, Your Honour. This is from
17 39:46, to 42:06 seconds.
18 JUDGE ORIE: Is that the part that was played?
19 MR. BAKRAC: [Interpretation] Yes, Your Honour. This was the part
20 that was played in the courtroom.
21 JUDGE ORIE: Yes. And a broader version has been provided to the
22 Registry or was it limited to the portion played?
23 MR. BAKRAC: [Interpretation] Your Honour, only what was played in
24 the courtroom.
25 JUDGE ORIE: Madam Registrar, have you received a video which you
1 managed to get into the system?
2 THE REGISTRAR: Your Honours, yes. The video was received,
3 although the surrogate sheet in e-court is still missing.
4 JUDGE ORIE: Then D454 will be admitted once the surrogate sheet
5 has been uploaded into e-court. Perhaps that could be done --
6 MR. BAKRAC: [Interpretation] Thank you, Your Honour.
7 JUDGE ORIE: I move on to D455, personnel file of Mr. Simatovic.
8 I do understand that it -- that everything is now uploaded, including
9 translation, Mr. Bakrac.
10 MR. BAKRAC: [Interpretation] Yes, Your Honour.
11 JUDGE ORIE: No objections from the Prosecution or the
12 Stanisic Defence?
13 MS. MARCUS: No, Your Honour.
14 JUDGE ORIE: D455 is admitted into evidence.
15 I now come to D456, which is related to what we earlier
16 discussed; that is, P2995. The problem there was that -- let me have a
17 look. That there was no unredacted version.
18 Is there an unredacted version meanwhile?
19 MS. MARCUS: Your Honour, this document is part of that issue
20 that we spoke about before, the one very large remaining RFA response
21 that we are still waiting for.
22 JUDGE ORIE: Yes. I do understand, however, that the translation
23 issue which was also pending has been resolved. Is that ...
24 MS. MARCUS: Yes, Your Honour.
25 JUDGE ORIE: Which means that the English translation, 2D882, is
1 now attached whereas the matter remains further to be resolved.
2 I move to D458. Apparently a translation was missing. The OTP
3 had an English translation. The Simatovic Defence wanted to verify the
5 Any further comments, Mr. Bakrac?
6 MR. BAKRAC: [Interpretation] Your Honour, the translation is
7 2D886. That's how it has been uploaded, under that number.
8 JUDGE ORIE: Madam Registrar, is a translation uploaded under
9 that number?
10 THE REGISTRAR: Yes, Your Honour, it is.
11 JUDGE ORIE: D458 is admitted into evidence under seal.
12 It's a quarter to 2.00. Madam Registrar, could you inform us, we
13 hope to move on this afternoon so as to finish the -- our discussion of
14 the MFI list. At what time could we restart this afternoon,
15 Madam Registrar?
16 THE REGISTRAR: Your Honour, we can restart after regular break.
17 JUDGE ORIE: Quarter past 2.00.
18 THE REGISTRAR: Yes, Your Honours.
19 [Trial Chamber confers]
20 JUDGE ORIE: I suggest to the parties that we take ample time for
21 lunch and that we start at 2.30. We'll take a break and we'll resume at
23 --- Recess taken at 1.49 p.m.
24 --- On resuming at 2.33 p.m.
25 JUDGE ORIE: We resume with the MFI list. We have dealt with
1 D458. We now move to D459. There was a translation missing. Has it
2 been meanwhile uploaded, Mr. Bakrac?
3 MR. BAKRAC: [Interpretation] Yes, it was uploaded. I apologise
4 for a moment. My mistake. No. We are still waiting for the
5 translation, and the moment we receive it, it will be uploaded,
6 Your Honours.
7 JUDGE ORIE: Yes. No decision there on D459, but we couldn't
8 come to any decisions anyhow at this moment unless I have explained why
9 only two Judges are sitting here.
10 Judge Picard is for urgent personal reasons unable to continue
11 sitting for a short period of time. That would be no longer than this
12 afternoon. And the -- Judge Gwaunza and myself have determined that it
13 would be in the interests of justice to continue to hear this case, and
14 that's the reason why we are sitting at this moment under Rule 15 bis.
15 Ms. Marcus, you were on your feet.
16 MS. MARCUS: Thank you, Your Honour. Yes. I've invited
17 Mr. Weber to come to the courtroom just to deal with D424 MFI and the
18 underlying exhibits to that if -- if Your Honour -- just in terms of
19 juggling team obligations if Your Honour would be willing to deal with
20 that, then Mr. Weber could perhaps be excused after he deals with -- with
21 those matters.
22 JUDGE ORIE: I'll move back to 424. Mr. Weber, 424 is a chart,
23 and the fate of the chart most likely depends on the fate of the
24 underlying documents. I would like to go through them one by one. The
25 first one still outstanding, D425. It -- from what I understand is that
1 the provenance concerns are still remaining.
2 MR. WEBER: Good afternoon, Your Honours. Thank you for
3 accommodating our request.
4 That is correct.
5 JUDGE ORIE: Which means that -- Mr. Jordash, is there anything
6 you could add as far as the provenance is concerned?
7 MR. JORDASH: Nothing that hasn't been said in the submissions
8 and the chart.
9 JUDGE ORIE: Yes. The chart. Let me just look at the
10 consolidated ...
11 MR. JORDASH: I can summarise the position, Your Honour, is that
12 it's the problem -- or the problem as the Prosecution see it a documents
13 supplied by Mr. Stanisic, but nonetheless we had that document before the
14 witness. The witness commented on it, and those comments with the
15 explanation that they came from Mr. Stanisic we say amply assist in
16 crossing the admissibility threshold.
17 JUDGE ORIE: Yes. You'd say -- I think, as a matter of fact, it
18 would appear on the list of documents coming from Mr. Stanisic, so that
19 the Chamber finally will decide on the matter.
20 I have, meanwhile, the consolidated --
21 MR. WEBER: Your Honour, if I could just make one note for the
22 reference with respect to that later consideration.
23 JUDGE ORIE: Yes, please.
24 MR. WEBER: The Prosecution would note that with respect to the
25 witness that provided these comments, he was a former employee of the
1 State Security Service, and he did indicate that he'd never seen the
2 document before. The Prosecution's position was that this witness who
3 was in a position to authenticate such things was unable to and that we
4 just provided that information for further consideration, and we do
5 maintain our objections as to the reliability and authenticity of the
7 JUDGE ORIE: Yes. As a matter of fact, to some extent this was
8 already clear on the record where the OTP took the position that the
9 witness only thought that the document was authentic.
10 It's not my intention to fully litigate now again all those
11 matters. If there's anything you'd like to add at this moment,
12 Mr. Jordash, you may do so.
13 MR. JORDASH: If a witness thinks a document is authentic and is
14 in the position of being able to recognise format and other identifying
15 features that, in our submission, amply crosses the threshold.
16 JUDGE ORIE: Yes. Okay. Mr. Weber, D427, it seems that there's
17 no further objection as far as provenance is concerned, but relevance and
18 the document not being on the 65 ter list appear to remain.
19 MR. WEBER: That's correct, Your Honour, and I do see that the
20 Chamber did address this one briefly earlier. To further the Chamber's
21 earlier query with respect to our maintaining our relevance objection,
22 the Prosecution would note that the document itself describes an event
23 which occurred on the 10th of June, 1991. The Prosecution does agree
24 that the witness's comments do indicate would provide some minimal
25 relevance in relation to this event, so we ask that our relevance
1 objection, it goes in tandem with the fact that we were not provided with
2 notice of this event, the significance of this event, what this
3 event relies -- what the Defence relies upon this event for, so we do
4 maintain both the notice objection and also the relevance objection, not
5 appreciating how the Defence may rely upon this event.
6 JUDGE ORIE: We'll consider the matter, and we'll decide on it.
7 We're not going to take it any further at this very moment.
8 430. It seems that the only remaining issue is that it was not
9 on the 65 ter list.
10 MR. WEBER: Correct.
11 JUDGE ORIE: Then may I take it that the Defence would like to
12 make an application to have it added to the 65 ter list and then being
14 MR. WEBER: Well, in tandem with that is a notice objection based
15 on its substance and what they're relying on it for. So the Prosecution
16 with respect to nine documents that were not on the Defence's 65 ter list
17 we opposed, and this is one of them.
18 JUDGE ORIE: Notice objection being that you were unaware -- now
19 this is already a while ago that have you been able to look at the
20 substance at this moment, and does that cause you any specific concerns
21 apart from the general observation that if it's not on the 65 ter list
22 that you would know about it before? I mean, I'd like to focus on
23 substance rather than formalities.
24 MR. WEBER: Of course. The Prosecution in terms its notice
25 objection views the potential prejudice as occurring between when the
1 document was disclosed and when the witness testified, which was a very
2 close window. We have been able to further review these documents and
3 the Chamber was very kind to extend a further deadline with respect to
4 the Prosecution notifying as to whether or not we recall the witness as a
5 potential solution maybe for these nine documents. The Prosecution would
6 be willing to either notify the Chamber along with whether or not we're
7 recalling the witness, whether or not we maintain our notice objection to
8 it with the understanding that if we do decide not to call the witness
9 that we would be waiving our objection to the nine documents.
10 JUDGE ORIE: Okay. That's then -- Mr. Jordash.
11 MR. JORDASH: May I just add -- add this, that on the
12 13th of October, 2011, in relation to Corbic, the Prosecution did
13 indicate that they didn't object to D430 and 427 just for your -- sorry,
14 432. So that's 430, 432.
15 JUDGE ORIE: Mr. Weber.
16 MR. WEBER: I see that this is addressed in the chart, this
17 specific e-mail correspondence. That would be our position. I can read
18 it if Your Honour would like. It says --
19 JUDGE ORIE: Is there an objection remaining then?
20 MR. WEBER: Yes.
21 JUDGE ORIE: Okay. Then, Mr. Jordash, I'm a bit confused. You
22 said there's no further objection, whereas the Prosecution tells us that
23 the e-mail indicates that there was further objection.
24 MR. JORDASH: Well, the e-mail that they sent us on the 13th of
25 October in relation to Corbic was that D430 and 432 were not objected to,
1 and now in relation to Novakovic apparently there is an objection to
2 those same two documents. That's the point I'm noting -- notifying the
3 Court of. And D437, I'm told as well, falls into that category. And the
4 only other thing I would add is that we still have not had any
5 identification of prejudice. We've had an assertion of late notice which
6 is accepted. We have not had any identification of notice of what the
7 prejudice is.
8 JUDGE ORIE: Mr. Weber.
9 MR. WEBER: To reconcile first the discrepancy over the e-mail, I
10 see our notes before us indicate that the 13 October 2011 e-mail was
11 intended to withdraw the Prosecution's objection as to authenticity,
12 still remaining the notice objection. So hopefully that reconciles that
14 MR. JORDASH: Sorry to interrupt, but that's not what the e-mail
15 says. It says the Prosecution has no objection to the admission of --
16 and then it says the Prosecution does not object to the following
17 underlying documents and then has a list.
18 MR. WEBER: Your Honour, if that was our mistake, at this time we
19 do maintain -- we do not have any objection to authenticity. We do
20 maintain an objection as to notice. At this time unless the Chamber
21 really would like me to repeat a lot of lengthy submissions that were
22 made during the course of the testimony as to the prejudice that occurred
23 in relation to the late notice of documents and topics that were not
24 discussed --
25 [Trial Chamber confers]
1 JUDGE ORIE: We'll not decide on the issue at this very moment.
2 The -- at the same time, I must express that sending an e-mail
3 that you do not object to admission and then to say, Well, this was a
4 mistake, is not the kind of accurate approach of serious matters which
5 the Chamber expects the parties even to adhere to in their mutual
7 431. No remaining objection is what my notes tell me.
8 MR. WEBER: Correct.
9 JUDGE ORIE: D431 is admitted into evidence.
10 D432. Only remaining is that it was not on the 65 ter list.
11 MR. WEBER: Correct.
12 JUDGE ORIE: Any specific prejudice which you could explain to us
13 in five words? Well, make it ten. Prejudice which still exists.
14 MR. WEBER: Your Honour, again this was a document that was
15 provided immediately before the testimony of the witnesses discussing
16 events in July of 1991. I've articulated with respect to analogous
17 situation. The Prosecution is still not -- not sure and not aware of
18 what the relevance to the Defence case is with respect to this and we
19 were not provide an opportunity at that time to investigate as part of
20 the witness's notices -- notice what these events really related to and
21 what the witness's knowledge may have been between the disclosure of the
22 documents and when the witness testified. That would be a short
24 JUDGE ORIE: Yes. It does not directly address prejudice which
25 still exists, but --
1 MR. WEBER: Your Honour, the Prosecution was not afforded the
2 opportunity to address that with the witness based on the late
3 disclosure. Again, if we decide not to call the witness, we would be
4 withdrawing our objection or seeking to address these matters further.
5 JUDGE ORIE: Okay. Then for 435, I have a similar report. I
6 take it that that's the same.
7 MR. WEBER: Yes.
8 JUDGE ORIE: 436 idem.
9 MR. WEBER: Yes.
10 JUDGE ORIE: 437 idem.
11 MR. WEBER: Yes.
12 JUDGE ORIE: 438, my notes tell me that there are no further
14 MR. WEBER: Correct.
15 JUDGE ORIE: 438 is admitted into evidence. I'm just wondering
16 whether there's any need to have it under seal or not. If not --
17 Mr. Jordash, I'm also addressing you, because it's tendered by the
18 Stanisic Defence.
19 MR. JORDASH: Could we just have ten minutes to check that,
21 JUDGE ORIE: Yes. Madam Registrar, we should provisionally keep
22 it under seal until we have heard from Mr. Jordash.
23 D440, notice again 65 ter, Mr. Weber, the same report?
24 MR. WEBER: Yes.
25 JUDGE ORIE: D443, the same report as well?
1 MR. WEBER: Correct.
2 JUDGE ORIE: That's it for this list. Mr. Weber, then if you
3 would like to leave, of course you are free to do so.
4 MR. WEBER: Thank you, Your Honour.
5 JUDGE ORIE: Then --
6 MR. WEBER: Your Honour, excuse me.
7 JUDGE ORIE: Yes.
8 MR. WEBER: There is -- my partner reminded me that there is
9 still the issue of D424, which is the comments chart. The Prosecution --
10 JUDGE ORIE: 424 is the --
11 MR. WEBER: Yes.
12 JUDGE ORIE: As I said before, is dependent on the fate of the
13 underlying documents and therefore remains MFI'd until other matters have
14 been resolved.
15 MR. WEBER: Thank you, Your Honour.
16 JUDGE ORIE: Thank you.
17 MS. MARCUS: Your Honour, can I request one brief moment to
18 confer before we move on.
19 JUDGE ORIE: Yes, please do so. Meanwhile, I'll try to find
20 where we were.
21 [Prosecution counsel confer]
22 MR. WEBER: Your Honour, if the Prosecution could just please
23 place on the record that it still maintains its objections to the
24 comments themselves and --
25 JUDGE ORIE: Is that anything new, Mr. Weber or --
1 MR. WEBER: No, Your Honour.
2 JUDGE ORIE: Then if there's no need to repeat that. We'll first
3 look into the underlying documents and then, of course, the next step
4 would be whether the comment given on them, whether that would be an
5 obstacle to admission. It's on the record.
6 I think we -- the last one we dealt with is 459, no further
7 decision taken. Then we move on to D461. Translation was missing, has
8 been uploaded meanwhile, Mr. Bakrac.
9 MR. BAKRAC: [Interpretation] That's correct, Your Honour. 2D897.
10 That's the number that it has been uploaded under.
11 JUDGE ORIE: Yes. Then D461 is admitted into evidence because
12 there were no further objections by the Prosecution or the
13 Stanisic Defence.
14 D462. The translation that was missing seems to have been
15 uploaded now, but the redaction is still an issue, Mr. Bakrac. Is that
16 correctly understood?
17 MS. MARCUS: Perhaps I could assist, Your Honour. This is
18 another one of those redacted files that we're waiting for. So it's --
19 it's -- we'll inform the Chamber as soon as we receive it.
20 JUDGE ORIE: Yes. Therefore no decision on D462 at this moment.
21 But is it true that the translation issue is -- has disappeared?
22 MR. BAKRAC: [Interpretation] Yes, Your Honour. The translation
23 has been uploaded as 2D895.
24 JUDGE ORIE: Yes. And it is the Prosecution who is seeking the
25 unredacted version, Ms. Marcus. And isn't it true that the same applies
1 to D463?
2 MS. MARCUS: Yes, Your Honour.
3 JUDGE ORIE: And there the translation issue, has that been
4 resolved, Mr. Bakrac?
5 MR. BAKRAC: [Interpretation] Yes, Your Honour. It has been
6 uploaded as 2D896.
7 JUDGE ORIE: Yes. So that problem is resolved, but the
8 redactions are still outstanding.
9 D464, same report as far as the Chamber is aware of.
10 MS. MARCUS: Correct, Your Honour.
11 JUDGE ORIE: So translation being there but the redaction issue
12 remaining. And the same would be true for D465, isn't it?
13 MR. BAKRAC: [Interpretation] Your Honour, for D464, the
14 translation has been uploaded as 2D167. When it comes to D465, the
15 translation is still pending.
16 JUDGE ORIE: So for D465, both the translation and the redaction
17 issue have not yet been resolved.
18 MR. BAKRAC: [Interpretation] That's correct, Your Honour.
19 JUDGE ORIE: I move on to D475. There's an objection due to an
20 incomplete text and hand markings.
21 Mr. Jordash, I think the Chamber is still waiting for a response
22 to that objection. It's a "Times" Article about hostages.
23 MR. JORDASH: We are in the process still of trying to obtain the
24 full document.
25 JUDGE ORIE: Yes. Therefore, no progress made yet.
1 Then we move on to the next one, which are the associated
2 exhibits related to -- and they're under seal, associated to a witness
3 statement. First D505 to 508. The Chamber understand that for D505,
4 D506 and D507, information about the origin has been provided. First, is
5 that correct? Second, does that cause any objections to be not further
7 MS. MARCUS: We have no further objections, Your Honour, to D505.
8 JUDGE ORIE: D505 is -- is admitted into evidence under seal.
9 MR. JORDASH: I think it can be public, Your Honour.
10 JUDGE ORIE: Can be public. Yes. NATO Press Service. It seems
11 that -- D505 is admitted into evidence. D506 -- as a public document.
12 D506, Ms. Marcus.
13 MS. MARCUS: Yes. No objections to either D506 or D507,
14 Your Honour.
15 JUDGE ORIE: D506 is admitted into evidence. Mr. Jordash, I take
16 it there is no reason to have it under seal.
17 MR. JORDASH: No, there is no reason, and the same for D507.
18 JUDGE ORIE: Yes. Then D507, as I said already, is admitted into
19 evidence and so is D60 -- no, I said -- I made a mistake.
20 As I earlier said, D506 is admitted into evidence, and so is
21 D507, both as public exhibits.
22 D508, there seems to have been no further information as far as
23 provenance or origin is concerned. Ms. Marcus, is that true?
24 MS. MARCUS: That's correct, Your Honour.
25 JUDGE ORIE: Your objection then stands?
1 MS. MARCUS: Yes, Your Honour.
2 JUDGE ORIE: Mr. Jordash, any chance that we receive any further
3 information as to this handwritten list of names and room numbers?
4 MR. JORDASH: I'm still waiting for the national council --
5 JUDGE ORIE: Yes.
6 MR. JORDASH: -- to come back to us.
7 JUDGE ORIE: Then we leave it for the time being as it is.
8 I now move to D519, which was a video of two persons chained to a
9 bridge. I do understand that the parties have reached an agreement as to
10 what portion should be in that video so as to satisfy both parties and
11 that therefore nothing opposes admission. Is there a finally agreed
12 version with the registrar?
13 MR. JORDASH: Not yet, Your Honour.
14 JUDGE ORIE: Not yet.
15 MR. JORDASH: We can have it there by tomorrow, Your Honour.
16 JUDGE ORIE: Yes. So D519, nothing further opposes admission
17 apart from that it's not yet in the hands of the Registry.
18 I move on to associated documents to witness -- D535, up to and
19 including D54. Let's start with the first one. D535. I do understand
20 that there's no further information yet as to provenance or origin.
21 MR. JORDASH: That's right, Your Honour.
22 JUDGE ORIE: And you're waiting for a response, Mr. Jordash?
23 MR. JORDASH: Yes.
24 JUDGE ORIE: Which means that we'll not decide on matter.
25 D536. I do understand that the origin is the UN web site.
1 MS. MARCUS: Your Honours, we have no objection to D536, D537,
2 D538, D539, D540, D541, D542, D543, D544 --
3 JUDGE ORIE: If you could just -- I have to change from list.
4 You said D541 is okay, and D542, -43, 544.
5 [Trial Chamber and legal officer confer]
6 JUDGE ORIE: Ms. Marcus, D541 is among a series I think we dealt
7 with when we were dealing with D452. On that list there are only three
8 which were objected on the basis of redactions. I think they were all
9 admitted into evidence with the exception of the three where the
10 unredacted version was still in need of a corresponding translation, and
11 I'll take you to where this was dealt with.
12 Ms. Marcus, you'll find it on page 71, line 2, of the transcript
13 where I said D541 through D558 are admitted into evidence with three
14 small exceptions, that is, for D552, D553, and D557, where corresponding
15 translations to the unredacted versions are still to be uploaded. So I
16 think we dealt with the documents you drew my attention to. Would you
18 MS. MARCUS: Your Honour, I will confess to a bit of confusion.
19 I think that I referred to documents D540, 541, 542, 543, rather than
20 552, but maybe I made a mistake, Your Honour. Perhaps the best is to go
21 one by one and I'll respond.
22 JUDGE ORIE: No, it's the series which is found in an internal
23 memo sent by the court officer on the 29th of November. The range is
24 from -- and I'm talking about the associated exhibits to the chart, the
25 range is from D541 up to and including D558, and we dealt with all of
2 MS. MARCUS: Okay, Your Honour, yes. I do apologise. Perhaps
3 then as Your Honour calls up the documents I can respond, because
4 obviously I have some duplications in my chart.
5 JUDGE ORIE: Yes. Well, what we -- let's go back to where we
6 were, which is that you told us that there were no objections further to
7 D536 through D540.
8 MS. MARCUS: Correct, Your Honour.
9 JUDGE ORIE: And therefore D536 through D540 are admitted into
10 evidence. Since not -- okay. Then we have dealt with D541 through D558.
11 We did that, because it was triggered by D452.
12 I see a nodding yes.
13 MS. MARCUS: Yes, Your Honour.
14 JUDGE ORIE: Yes. By the way, let me express clearly that no one
15 is blamed for being confused now and then with this kind of
16 administrative matters. I protect myself against any confusion I will
17 show or have already shown.
18 We move on to D560. Let me have a look. There were four
19 categories of -- no. One second. Let me have a look. First of all, I
20 do understand that for the chart found in D560, that an agreement has
21 been reached on redactions in which the -- redactions in related --
22 related to the objections raised by the Prosecution in view of knowledge
23 of the witness, personal information included in the chart, whether or
24 not the witness adds any relevant information. All those objections seem
25 to have been resolved - is that correct? - which would require that a new
1 version of D560 would have been uploaded.
2 Mr. Bakrac.
3 MR. BAKRAC: [Interpretation] Your Honour, let me assist. A new
4 version has been uploaded, both the redacted proposal by the OTP in
5 English as well as the redacted B/C/S version. They have been uploaded
6 as 2D910.1.
7 JUDGE ORIE: Madam Registrar, the new version of D560 may replace
8 the old version, the new version the redacted version.
9 Now, that's the chart. We then move to the underlying documents.
10 I received information that the Simatovic Defence has withdrawn D572.
11 MR. BAKRAC: [Interpretation] Yes, Your Honour. We agree that
12 this document does not possess the necessary degree of relevancy. We
13 agree that this document D572 should be admitted into evidence.
14 JUDGE ORIE: It should not be admitted into evidence, I take it.
15 MR. BAKRAC: [Interpretation] Yes, that's correct. Should not be
16 admitted into evidence.
17 JUDGE ORIE: May I -- may I then take it that it has been removed
18 from the chart so that the comments of the witness and in relation to
19 that document also have been removed?
20 MR. BAKRAC: [Interpretation] Your Honour, we are just checking.
21 If you can bear with me, please, for a moment.
22 Your Honour, it is in the table, and if -- with your leave, we
23 will redact that document as well, and then we will subsequently submit
24 a -- the redacted version if either you or Registry do not have a better
25 proposal. We will submit a subsequent redacted version of the previous
1 document which is a table, D560.
2 JUDGE ORIE: Yes, because it doesn't make much sense to receive
3 in evidence the comment of a witness on a document which is not in
5 Then second, we do understand that D606 in this series is vacated
6 because there's a duplicate of P3057.
7 MR. BAKRAC: [Interpretation] Correct, Your Honour.
8 JUDGE ORIE: Now, I think it would be wise to keep the comment of
9 the witness, because it is comment on a document which, although under a
10 different number, is in evidence. Therefore, D606 is vacated, but the --
11 one could even consider whether it would be better to redact the chart in
12 such a way as to refer to the document as P3057.
13 MR. BAKRAC: [Interpretation] This is precisely what I was going
14 to propose. As far as we are concerned, this is acceptable. Since the
15 D572 is being vacated, then we can also replace the number. Maybe we
16 could mark this document as a P document just as you proposed.
17 JUDGE ORIE: Yes. Now the third category is the category where
18 no further objection seems to exist. That is D581, D586, D599, D600, and
20 MS. MARCUS: Correct, Your Honour.
21 JUDGE ORIE: The documents I just referred to are admitted into
22 evidence, and let me just verify with the parties whether there's any
23 need to have them admitted under seal.
24 MR. BAKRAC: [Interpretation] Your Honour, yes. They should be
25 admitted under seal, especially now that they have been redacted.
1 JUDGE ORIE: They are admitted, all under seal.
2 Now we have another series of documents where either the
3 translation was in need of revision just on itself or whether the -- an
4 unredacted version has now become available and, therefore, requires a
5 corresponding translation with this new version, and therefore the --
6 either the -- only the translation if there is no redaction issue, or
7 both the original and the translation should be -- should replace the
8 previous versions. This is -- this applies to D561 up to and including
9 D571, D573 through D580, D582 through D585, D587 through D598, D601
10 through D605.
11 MR. BAKRAC: [Interpretation] Yes, Your Honour, you're right. We
12 have uploaded them all in the system, and they have their corresponding
13 65 ter numbers followed by .2.
14 JUDGE ORIE: And have the translations already been uploaded
15 which correspond to the new version?
16 MR. BAKRAC: [Interpretation] Yes Your Honour, they have been.
17 JUDGE ORIE: All to be admitted under seal, Mr. Bakrac?
18 MR. BAKRAC: [Interpretation] Yes, Your Honour.
19 JUDGE ORIE: Then the entire list of documents I referred to
20 earlier which started with D561 and ended with D605 are, as it seems to
21 be ready, to be admitted into evidence, Ms. Marcus, unless you have
22 any --
23 MS. MARCUS: Your Honours, I just have one --
24 JUDGE ORIE: -- objections.
25 MS. MARCUS: -- additional point, a very brief point. We
1 completely agree with what the Chamber has said. With respect to a few
2 of these documents, in the original version there are quotation marks
3 around code-names, whereas in the translation, those quotation marks are
4 absent. This is a matter that we raised in court at page 15594. This
5 issue pertains to the following exhibits: That's D589, D590, D592, to
6 D596, D598, D601, and D603. Once that is corrected, then all other
7 objections are --
8 MR. BAKRAC: [Interpretation] Your Honour, this has been corrected
9 already, and we have quotation marks around the code-names.
10 MS. MARCUS: We accept the assertion of Mr. Bakrac and no further
12 JUDGE ORIE: Therefore the documents which I refer to some 28 to
13 30 lines further above, starting with D561, ending with D605, to the
14 extent not excluded in my listing are admitted into evidence under seal.
15 And I move to D609, excerpt of a book authored by the witness.
16 No further objections as we understand, Ms. Marcus.
17 MS. MARCUS: That's correct, Your Honour.
18 JUDGE ORIE: D609 is admitted into evidence.
19 D612. Translations were to be corrected. Any further
20 objections, because I do understand that these corrected translations
21 have been uploaded; is that correct, Mr. Bakrac?
22 MR. BAKRAC: [Interpretation] Your Honour, it is correct.
23 However, a translation is still pending for D612. The others have been
24 uploaded and they have their corresponding 65 ter numbers followed by .2.
25 JUDGE ORIE: Yes. And you are now referring to D613, D614, D615,
1 and D616, and D617, Mr. Bakrac?
2 MR. BAKRAC: [Interpretation] Yes, Your Honour. Let me correct
3 you. I don't think that we have D615. So this doesn't apply to D651
4 [as interpreted]. The list also implied documents D620 and D621.
5 JUDGE ORIE: Let me go one by one. 612 no final translation yet;
6 therefore remains MFI'd. D613 translation now corrected; therefore, 613
7 is admitted into evidence. D614 is the same report, also admitted into
8 evidence. D615, I understand no translation available yet, Mr. Bakrac?
9 MS. MARCUS: No, Your Honour. I believe that D615 does not even
10 exist on the list. The following document is D616. That may be our
12 [Trial Chamber and legal officer confer]
13 JUDGE ORIE: Mr. Bakrac, I do understand that you're working from
14 a list which is slightly different from the list I'm working with. D615,
15 which is on the MFI list, there was a -- it seems that this one is not
16 part of the agreement you reached with the [overlapping speakers].
17 MR. BAKRAC: [Interpretation] Yes, Your Honour. D615 is a
18 separate document. It doesn't belong to this group. By mistake it was
19 MFI'd. I don't think that there were any objections to its admission.
20 If I'm mistaken, my learned friend Ms. Marcus is going to correct me.
21 JUDGE ORIE: Ms. Marcus, the armoured trained crew of the Krajina
22 express, any objections?
23 MS. MARCUS: No objection, Your Honour.
24 JUDGE ORIE: D615 is admitted into evidence.
25 No need to have it under seal, Mr. Bakrac?
1 MR. BAKRAC: [Interpretation] No, Your Honour.
2 JUDGE ORIE: And D16 and D -- no. I made a mistake. D616 and
3 D617, after the translation has been corrected no further objections from
4 the Prosecution?
5 MS. MARCUS: Correct, Your Honour.
6 JUDGE ORIE: D616 and D617 are admitted into evidence. No need
7 to have them under seal, Mr. Bakrac?
8 MR. BAKRAC: [Interpretation] No, Your Honour. No, Your Honour.
9 No need.
10 JUDGE ORIE: Yes. Now, I move to the next series, a series of
11 three documents --
12 MR. BAKRAC: [Interpretation] Your Honour.
13 JUDGE ORIE: Yes.
14 MR. BAKRAC: [Interpretation] I apologise for interrupting you.
15 In my records, it says that D621 and D620 have also been MFI'd. The two
16 documents have been translated and uploaded.
17 JUDGE ORIE: Yes. Let me -- I wasn't there yet. I was just
18 saying that I take you to the series, the next three, which is D619,
19 D620, and D621. For all those three documents, it was established that
20 two B/C/S versions existed, and that the Simatovic Defence and the
21 registry would sort out which was the one to remain.
22 Mr. Bakrac.
23 MR. BAKRAC: [Interpretation] Yes, Your Honour. Please bear with
24 me for a moment. Let me check. I believe that D620 and D621 have
25 received the new translations. Let me just check whether that's also
1 correct for D619.
2 Your Honour, with your leave I would like to check this
3 subsequently. We're in no position at the moment to provide you with the
4 correct information at this time.
5 JUDGE ORIE: Yes, because uploading a new translation where there
6 are two B/C/S originals which may not be exact the same but at least two
7 B/C/S versions might not resolve the problem. We wait for further
8 reports on these three documents both in the relation to the B/C/S and
9 the translation.
10 D641, a video-clip. We understand that there are no further
11 objections by the OTP. Video-clip showing Arkan giving orders.
12 MS. MARCUS: One brief moment, Your Honour.
13 JUDGE ORIE: Yes.
14 [Prosecution counsel confer]
15 MS. MARCUS: No objections.
16 JUDGE ORIE: December 641 is admitted into evidence.
17 D642, also a video. We understand there are no further
18 objections either.
19 MS. MARCUS: Correct, Your Honour.
20 JUDGE ORIE: D642 is admitted into evidence.
21 D643. There was an issue of having a broader portion admitted
22 for contextualisation. Has there been any agreement between the parties
23 on the broader portion of the video to be covered by D643?
24 MS. MARCUS: Your Honour, from our view I don't think there is a
25 dispute. I think we agree. Our position was that the entire 60 seconds
1 that was played would be admitted, along with a transcript that would
2 need to be provided for the entire 60 seconds.
3 JUDGE ORIE: And --
4 MS. MARCUS: So in other words, the transcript I think that was
5 attached originally only covered half of the portion that was played. So
6 as long as the transcript matches the --
7 JUDGE ORIE: So the broader portion of the transcript rather than
8 the video --
9 MS. MARCUS: Yes.
10 JUDGE ORIE: -- has the full 60-second covering transcript been
11 uploaded, Mr. Bakrac?
12 MR. BAKRAC: [Interpretation] Your Honour, we have not uploaded it
13 because we do not rely on the conversation. We rely on the video without
14 any text. Maybe this solves the problems. This is how I understood my
15 colleague Ms. Marcus. I thought that they didn't have any objections.
16 However, if there's still the need to upload the rest of the transcript,
17 we will be only too happy to do that.
18 JUDGE ORIE: Ms. Marcus, I also understand that the
19 Simatovic Defence does not rely on the narrator which appears in this
21 Now, Mr. Bakrac, if you say, Well, we do not rely on certain
22 portions, that is fine, but sometimes that is exactly the reason why
23 another party would seek that to be admitted for contextualisation,
24 because it adds something which you might not be interested in but which
25 might provide context.
1 Ms. Marcus, what's your position at this moment.
2 MS. MARCUS: Your Honour, we would prefer for the completeness of
3 the record for the whole transcript to be admitted. We understand that
4 the Simatovic Defence doesn't rely on the words of the journalist, but in
5 our position the transcript should match the video that was tendered.
6 MR. BAKRAC: [Interpretation] Your Honour, in that case, with your
7 leave, of course, we'll do that.
8 JUDGE ORIE: We're waiting for a full transcript of the 60
9 seconds that were played. And, Ms. Marcus, have you formed already an
10 opinion on when that's done whether there's any objection?
11 MS. MARCUS: There are no objections, Your Honour.
12 JUDGE ORIE: So it's the pure technicality of providing a full
13 transcript, which keeps us off from admitting at this moment.
14 D645. I do understand that there are no further objections,
15 Ms. Marcus.
16 MS. MARCUS: Correct, Your Honour.
17 JUDGE ORIE: D645 is admitted into evidence.
18 D647, which is a redacted document. First of all, has the full
19 translation been provided?
20 MR. BAKRAC: [Interpretation] Yes, Your Honour. It has been
21 provided, and it has been uploaded as 2D901.
22 JUDGE ORIE: Then, Ms. Marcus, the Chamber understands that
23 although it is a redacted document that you nevertheless not object to
24 admission; is that correct?
25 MS. MARCUS: That's correct, Your Honour.
1 JUDGE ORIE: Then D647 is admitted into evidence, although under
3 [Trial Chamber and registrar confer]
4 JUDGE ORIE: Mr. Bakrac, I do understand that not only a full
5 translation is uploaded but even two translations. If they are the same,
6 then of course we could compare them. Then it's of course no problem
7 whatsoever. But to be honest, I'd like you to --
8 MR. BAKRAC: [Interpretation] Yes, Your Honour. At the time when
9 our witness Pelevic testified only one page was uploaded. Now we have
10 uploaded the entire file. That's why you have that situation. First we
11 only updated one page that was presented to the witness and now we have
12 uploaded the entire file. I apologise. It was not Pelevic, it was
13 Witness Dimitrijevic with whom we discussed that page. And for the
14 purpose of his testimony, we uploaded that one page. After the
15 Prosecution's objection, we uploaded the entire file.
16 JUDGE ORIE: Yes. Now does the entire file include the page
17 which you previously had uploaded the translation?
18 MR. BAKRAC: [Interpretation] Yes, Your Honour.
19 JUDGE ORIE: The short translation of one page can be detached.
20 THE REGISTRAR: Yes, Your Honour, I will just repeat the numbers
21 so that we are clear. So the translation uploaded at the ID document --
22 document ID 2D012678 can be detached while the translation uploaded under
23 number 2D014416 remain as the translation of the document D647.
24 JUDGE ORIE: Yes, which was admitted into evidence under seal.
25 Mr. Bakrac, the 30th of May, 2011, motion for a Rule 54 bis order
1 includes this document. May I take it that you'll consider this request
2 in that respect to be moot?
3 MR. BAKRAC: [Interpretation] Yes, Your Honour, you're right.
4 That request has become moot. We saw that document in its non-redacted
5 version, and we are fully satisfied with the document being admitted in
6 its redacted version, so our request as per Rule 54 is now moot and the
7 document can be withdrawn.
8 JUDGE ORIE: Madam Registrar, you are hereby instructed to inform
9 the Republic of Serbia of this document not further be part of the -- the
10 motion of the 30th of May, 2011.
11 [Trial Chamber and legal officer confer]
12 JUDGE ORIE: I do understand it was all that was in the motion,
13 and therefore that the whole motion is moot.
14 MR. BAKRAC: [Interpretation] Yes, Your Honour. You're absolutely
15 right. And if you may give me an opportunity, I would like to go back to
16 619, that is D619, D620, and D621. D619 is now 2D -- Your Honour, these
17 are three documents which were originally uploaded from the Croatian
18 book, and then subsequently we uploaded their originals. We have the
19 translations of the originals of the documents that we received from the
20 Croatian government. We have just checked that. Maybe we can resolve
21 this issue which has remained pending or maybe we can deal with it at a
22 later stage.
23 JUDGE ORIE: Do I understand you well that you say for D619,
24 D620, and D621 that you originally uploaded an original B/C/S version --
25 well, a B/C/S version which was taken from a book and that you later
1 uploaded the same document not taken from that book but in its original
2 version and that the corresponding translation now relates to the
4 MR. BAKRAC: [Interpretation] Yes, Your Honour, you're right.
5 JUDGE ORIE: So what then has to be verified or perhaps has to be
6 done is to see that the book version, not the original one, should be
7 removed from e-court.
8 MR. BAKRAC: [Interpretation] Your Honour, we will see about that
9 with the Registry. We will see whether we can remove that or whether we
10 have to seek assistance in that sense. We would not trouble you with
11 that any further.
12 JUDGE ORIE: Yes. I expect you to resolve this matter still this
13 week with Madam Registrar, because it's purely administrative.
14 [Trial Chamber and legal officer confer]
15 JUDGE ORIE: Ms. Marcus.
16 MS. MARCUS: Your Honour, I just wanted to put on the record that
17 with respect to D619, 620, and 621, we have no remaining objections
18 either, just so that only the technical issue would be remain, in our
20 JUDGE ORIE: Thank you, Ms. Marcus.
21 I move on to the next one, which is D649. There is a problem
22 related to D649 and D667.
23 It seems that document 2D527, which was tendered by the
24 Simatovic Defence, received two numbers. First, D649 on the 19th of
25 January through Witness Dimitrijevic, and then again on the 25th of
1 January, 2012, but then number D667 through Witness Pelevic. In both
2 cases the documents were MFI'd.
3 Now it seems that under this 65 ter number more documents were
4 uploaded. One to which the number D667 was assigned seems to be the most
5 accurate, having an original documents and a translation resembling one
6 discussed in court.
7 The other one, which was assigned number D649, seems to be some
8 unrelated translation of some other document but with the same 65 ter
10 If it was the intention of the Simatovic Defence that both
11 documents were tendered -- that it was seeking to tender and to have
12 admitted both documents, they can remain as they're now uploaded under
13 one 65 ter number, but if only one of them was intended to be tendered
14 and admitted into evidence, then one needs to be vacated. But before
15 that, the documents need to be re-uploaded under one number. So either
16 split in tow documents with each its own individual doc ID, or vacate the
17 649. We do understand that the Prosecution has no objection to D667 to
18 be admitted. Ms. Marcus, is that correct?
19 MS. MARCUS: Correct, Your Honour.
20 JUDGE ORIE: Thank you.
21 Mr. Bakrac, what will be the path you're following?
22 MR. BAKRAC: [Interpretation] Your Honours, it was our mistake.
23 We readily admit that D667 is where 2D527 should be. That is the
24 document we want, but by mistake, we also uploaded under the same number
25 D667, the 65 ter number 2D572, which means we just turn the numbers.
1 That should be a different piece of evidence. We will make sure that we
2 split the two documents and resolve the problem of erroneous uploading.
3 [Trial Chamber and registrar confer]
4 JUDGE ORIE: You, then, Mr. Bakrac, would have to re-upload the
5 two documents, provide the doc IDs to Madam Registrar, and then we'll see
6 which document receives what number.
7 Ms. Marcus, even if it's split up in two documents, no objections
8 against admission once the administrative matter has been resolved?
9 MS. MARCUS: Correct, Your Honour.
10 JUDGE ORIE: Thank you. Then we'll wait until this matter has
11 been technically -- be resolved --
12 MR. BAKRAC: [Interpretation] Thank you, Your Honour --
13 JUDGE ORIE: Likely we will have two new exhibits after that.
14 D650. I do understand that the Prosecution claims it needed more
15 time to consider any objections, but that meanwhile no objections further
17 MS. MARCUS: Yes, Your Honour, correct.
18 JUDGE ORIE: Yes. Which means that D650 is admitted into
20 Any need to have it under seal Mr. Bakrac?
21 MR. BAKRAC: [Interpretation] No, Your Honour.
22 JUDGE ORIE: Thank you. Then D650 is admitted as a public
24 The next series, D656, 657, 665, and 666, are all videos. Do I
25 understand the position of the OTP correctly when I say that D656, D657,
1 and D665 meet no objections?
2 MS. MARCUS: That's right, Your Honour. The only point to add
3 with respect to D656 is that the entire clip tendered, in our view, would
4 include 41 minutes, 49 seconds up to 43 minutes, 58 seconds. This
5 corresponds to the uploaded transcript. If that is confirmed to be
6 what's being tendered, then we do not have any objections to that, and no
7 objections to D657 or 665.
8 JUDGE ORIE: Mr. Bakrac, could you confirm that what was --
9 what's in the system corresponds to the uploaded transcript.
10 MR. BAKRAC: [Interpretation] Yes, Your Honours.
11 JUDGE ORIE: [Microphone not activated] facing a similar problem
12 as we saw before that parts of the words spoken are not appearing in the
14 MR. BAKRAC: [Interpretation] What was played, say, has already
15 been transcribed, so we also have the transcript of it.
16 JUDGE ORIE: So then D656, D657 and D665 are admitted into
17 evidence. There is one issue. Madam Registrar, earlier the number D665
18 was provisionally assigned, although you had not received the video
19 itself. Has that been corrected?
20 THE REGISTRAR: Yes, Your Honour. The video has been received
22 JUDGE ORIE: Then the decision remains as I pronounced it.
23 Next one, D666, also a video of the celebration of the
24 anniversary of the SDG. There may have been a similar problem as we saw
25 earlier that not all of the text is described. Ms. Marcus, is that --
1 MS. MARCUS: Your Honour, actually, for this video our position,
2 and it seems that the Simatovic Defence has agreed with us, we would like
3 the whole footage of that ceremony to be admitted, not just the portion
4 with the witness's speech but the entire video.
5 JUDGE ORIE: Yes. So that's therefore a broader portion of, as a
6 matter of fact, the entirety for contextualisation.
7 MS. MARCUS: Yes, Your Honour.
8 JUDGE ORIE: Mr. Bakrac, the entire video rather than the clip
9 you have selected.
10 MR. BAKRAC: [Interpretation] Your Honours, we don't have any
11 problems with that. I hope that my esteemed colleagues from the
12 Prosecution will not misunderstand me. I believe then it's upon the OTP
13 to have the rest of the text transcribed. Am I not right?
14 JUDGE ORIE: There's a question, Ms. Marcus.
15 MS. MARCUS: Yes, Your Honour. We can submit it for
17 JUDGE ORIE: Yes. And therefore it remains MFI'd. There is no
18 disagreement as to whether D666 but then the entire video can be admitted
19 into evidence, but we are waiting for the transcription of the full
21 Now, Ms. Marcus, I've got no idea how much that is, if that's
22 another one or two hours. You might even consider to further find an
23 agreement with Mr. Bakrac to be happy with a little bit less of
24 contextualisation and saving a lot of human resources.
25 MS. MARCUS: We will certainly consider it, Your Honour.
1 JUDGE ORIE: Yes. Okay. Then we'd like to hear from you as soon
2 as possible.
3 D667, we have dealt with that already in the context of D649.
4 D674. Any translation yet? Translation of the stamp was
6 MR. BAKRAC: [Interpretation] Your Honours, I'm checking this now.
7 I believe it has been resolved, but -- yes. Yes. 2D192.2.
8 JUDGE ORIE: That's the corrected translation.
9 D674 is admitted into evidence.
10 D675, a handwritten annotation on the first page was not
12 Mr. Bakrac.
13 MR. BAKRAC: [Interpretation] Already translated, Your Honours,
14 and uploaded, 2D198.2.
15 JUDGE ORIE: D675 is admitted into evidence.
16 D687, the OTP objects to the authenticity. It is a letter from
17 Fikret Abdic to Boutros Boutros-Ghali dated the 7th of October.
18 Ms. Marcus.
19 MS. MARCUS: Your Honour, we maintain our objections especially
20 in light of the developments with respect to the other letters from Abdic
21 where we found the signed original to be the one that was in the
22 possession of the accused. We are conducting inquiries with respect to
23 that letter. There are two other -- so there are two other similar
24 letters that have been admitted, D755 and D756. Depending upon the
25 results of our inquiries, we may move to have those vacated, but at the
1 moment we would just maintain our objection to D687 pending the results
2 of our inquiries.
3 JUDGE ORIE: Yes. I don't know in what direction your inquiries
4 go, but the first thing that comes to my mind in relation to this
5 document would be let's check the archives of the UN, because
6 Mr. Boutros Boutros-Ghali was employed by the UN, isn't it, in a rather
7 high position.
8 MS. MARCUS: Yes, Your Honour. We're -- we will -- we will be
9 sending inquiries. We've already sent some inquiries with respect --
10 there are three letters in total and we can keep the Chamber informed.
11 But we do have grave concerns about -- about -- this situation
12 exemplifies the concerns we have with the collection of the accused
13 without a great deal of further evidence of authenticity and reliability.
14 JUDGE ORIE: Yes, but the author of the letter is known, the
15 addressee of the letter is known, the date of the letter is known. I can
16 imagine that it should be possible to verify whether that letter ever
17 reached the addressee.
18 MS. MARCUS: Yes, Your Honour, we'll do that.
19 JUDGE ORIE: That's appreciated. We'll leave it for the time as
20 it is.
21 D688, information about the provenance was provided as we
22 understand. An unredacted version of the document is now available, as I
23 under. Any further objections?
24 MS. MARCUS: No, Your Honour.
25 JUDGE ORIE: Then, Mr. Bakrac -- no. Mr. Stanisic --
1 Mr. Jordash, the unredacted version, has it been uploaded?
2 MR. JORDASH: Yes, under .1 of the original e-court.
3 JUDGE ORIE: Yes, has a corresponding translation already been
5 MR. JORDASH: Not yet, Your Honour.
6 JUDGE ORIE: Then that's the only thing that keeps us off from
7 admitting it into evidence. We're waiting for that corresponding
8 translation to be uploaded, after which D688 may be admitted under seal.
9 Mr. Bakrac, the court officer draws my attention to the fact that
10 D674, that a translation is attached, but apparently a translation of two
11 documents and that the same would be true for D675.
12 I am afraid that we are unable to finish the remainder of the MFI
13 list in this one session. It would just cause too many problems and we
14 might make mistakes at the end. Therefore, I suggest that we take a
15 relatively short break, that is --
16 [Trial Chamber and registrar confer]
17 JUDGE ORIE: I do understand that it was not foreseen that we
18 would continue this long and that it was the communication about -- that
19 we would continue this afternoon and for how long we would continue that
20 that communication was not what it should have been.
21 I therefore suggest that unless we have some very easy ones to
22 deal with those, but skip a few others.
23 D690, I do understand that there are no further objections.
24 MS. MARCUS: Correct, Your Honour.
25 JUDGE ORIE: D690 is admitted. D690 is admitted into evidence.
1 Same report for D691.
2 MS. MARCUS: Yes, Your Honour.
3 JUDGE ORIE: D691 is admitted into evidence.
4 D693, the same report?
5 MS. MARCUS: Correct, Your Honour.
6 JUDGE ORIE: D693 is admitted into evidence.
7 D694, admission pending inspection of the original by the
8 parties, the military booklet of Gagic. Any objections?
9 MS. MARCUS: No objections.
10 JUDGE ORIE: D694 is admitted into evidence.
11 I move to D757. Information on provenance was expected.
12 Ms. Marcus, received any such information?
13 MS. MARCUS: Not yet, Your Honour.
14 JUDGE ORIE: Not yet. Therefore, no decision will be taken.
15 I move to the last ones, D783, the RDB Valjevo Official Note.
16 Origin meanwhile been verified?
17 MS. MARCUS: Not to my knowledge, Your Honour.
18 JUDGE ORIE: Not yet. D784, same report?
19 MS. MARCUS: Yes.
20 JUDGE ORIE: Then we leave it to that and not further.
21 There is one short message I would like to read before we
22 adjourn, and we have two or three pages left of the MFI list with which
23 we have to deal at a later stage.
24 I deliver a short statement on the filing of final trial briefs
25 pursuant to Rule 86(B) of the Rules of Procedure and Evidence.
1 Having considered the current witness schedule, the Chamber
2 informs the parties that they should prepare for the filing of final
3 trial briefs before the summer recess. As the current witness schedule
4 contains some uncertainties, this provisional timetable for the final
5 briefs may have to be amended, but the parties should still prepare to
6 file those briefs before the summer recess. The Chamber will provide
7 further details on precise dates for filing the final trial briefs at a
8 later date.
9 We'll adjourn for the day. Madam Registrar, the next session
10 scheduled ...
11 [Trial Chamber and registrar confer]
12 [Trial Chamber and legal officer confer]
13 JUDGE ORIE: I suggest that we continue tomorrow at 9.00 and
14 finish the MFI list, because otherwise it would have to wait for a whole
15 month and which is not desirable. It will be a relatively short session
17 Any objections by the parties? I'm not asking for an applause,
18 but I'm asking whether there are any objections.
19 MS. MARCUS: None from the Prosecution, Your Honour.
20 JUDGE ORIE: Silence is to be understood as approval, Mr. Jordash
21 and Mr. Bakrac.
22 MR. JORDASH: Approval may be a strong word, Your Honour, but no
24 JUDGE ORIE: No objections. If anyone would think that -- may I
25 take it that the waiver to be present would extend for the housekeeping
1 session if we deal with nothing else tomorrow, that it would extend to
2 that as well, and if there's any reason to further verify that, that
3 action will be taken.
4 MR. JORDASH: Certainly, Your Honour.
5 JUDGE ORIE: Yes. Then we -- we'll adjourn until tomorrow,
6 the -- Thursday, the 29th of March, 9.00 in the morning in this same
7 Courtroom II. We stand adjourned.
8 --- Whereupon the hearing adjourned at 4.12 p.m.,
9 to be reconvened on Thursday, the 29th day
10 of March, 2012, at 9.00 a.m.