Tribunal Criminal Tribunal for the Former Yugoslavia

Page 20143

 1                           Tuesday, 12 June 2012

 2                           [Open session]

 3                           [The accused not present]

 4                           --- Upon commencing at 3.07 p.m.

 5             JUDGE ORIE:  Good afternoon to everyone in this courtroom.

 6             Madam Registrar, would you please call the case.

 7             THE REGISTRAR:  Good afternoon, Your Honours.

 8             This is the case IT-03-69-T, The Prosecutor versus

 9     Jovica Stanisic and Franko Simatovic.

10             JUDGE ORIE:  Thank you, Madam Registrar.

11             I hereby establish that the accused are not present in court.

12     May I specifically ask counsel whether the accused waived their right to

13     be present.

14             Stanisic Defence first.

15             MR. JORDASH:  Yes, he does, Your Honour.

16             JUDGE ORIE:  Yes.

17             Mr. Bakrac.

18             MR. BAKRAC: [Interpretation] Yes, Your Honour.

19             JUDGE ORIE:  I am asking this so specifically because the waiver

20     forms we received on the 7th of June were far from perfect, not the

21     necessary boxes had been ticked, but I think we had established already

22     prior to the 7th of June session that the accused, then being present,

23     waived their right to be present at that hearing as well.  That is on the

24     transcript of the hearings before that.

25             Then we'll see whether we also receive, in addition to what we


Page 20144

 1     have established a minute ago, the now-perhaps-perfectly completed waiver

 2     forms.

 3             I move on to a few matters before we will finalise the MFI list.

 4             The -- first, there was some question about the provenance of

 5     D365.  I think, Mr. Jordash, that you still considered it a possibility

 6     that the document's provenance was explained or at least would become

 7     clear from the Theunens report.

 8             Any further matter to report.

 9             MR. JORDASH:  It is actually not clear from the Theunens report.

10     It is, on the face of it, a document which relates to the same subject as

11     discussed by Theunens.  That's the attempt to regulate the use of

12     volunteers and their subordination to the army, in this instance, the TO;

13     in the Theunens report, the JNA.

14             We've looked at the statement which is a Prosecution witness or

15     was a proposed Prosecution witness at one point, and that witness doesn't

16     take the matter much further other than to say the law was published at

17     some point, but there's no further description as to when and where.

18     Actually, there's no further description as to when, but I think it was

19     the gazette in the usual way.  We've done a search and we've continued to

20     search the EDS but have not been able to find a copy and that's as far as

21     we've taken it, or can take it at this moment.

22             JUDGE ORIE:  Yes.

23             The position of the Prosecution still the same?

24             MR. FARR:  Your Honour, we've looked at it further and I think

25     with one further comment we can probably withdraw our objection.  Our

Page 20145

 1     comment is that as Your Honour observed on the 18th of August, 2011, at

 2     transcript page 13328 to 13329, there's no way to determine when this

 3     instruction entered into force.  Paragraph 14 indicates that it

 4     superceded a previous instruction.  The previous instruction we know

 5     dates from 1st of October of 1991, so we know that this instruction

 6     entered into force sometime after the 1st of October, 1991.

 7             What we don't know is how much later.  After further review the

 8     Prosecution believes that this instruction may be consistent with what

 9     was happening after December of 1991.  But, in any event, we would submit

10     that in light of the uncertainty, the Chamber should carefully assess

11     other evidence to determine when or if this instruction was effective.

12             JUDGE ORIE:  But you do not oppose admission, I do understand.

13             MR. FARR:  We withdraw our objection with that comment,

14     Your Honour.

15             JUDGE ORIE:  Objection withdrawn.  D365 is admitted into

16     evidence.  Nevertheless, Mr. Jordash, for the Chamber to be able to draw

17     any inferences from it or to draw any conclusions from it, of course, it

18     would be better to know when it entered into force.

19             MR. JORDASH:  We'll keep searching.

20             JUDGE ORIE:  Yes.  Thank you.

21             Then D456 and D462 are revised English translations available by

22     now, Mr. Bakrac.

23             MR. BAKRAC: [Interpretation] Yes, Your Honour, you're right.

24     Yes, the revised translations have been uploaded -- sorry, could I just

25     have a moment again.

Page 20146

 1             Yes.  Yes.

 2             JUDGE ORIE:  Yes.  Under what number so that Madam Registrar can

 3     replace the existing translations by the revised translations.

 4             MR. BAKRAC: [Interpretation] D462 is 2D895.  And D456 is 2D882.

 5             JUDGE ORIE:  Ms. Harbour.

 6             MS. HARBOUR:  Yes, Your Honour, just a couple of comments about

 7     these documents.  They're, I think as you've stated, both redacted

 8     versions of personnel files and I think that we can leave the unredacted

 9     versions to code PF and deal with them at a later time.

10             But regarding the redacted versions, the description in e-court

11     of D456, should say "Dusan Momcilovic."  It currently has the incorrect

12     name just in the description.  And also since this is it a redacted

13     version, it can be public.  It is it currently under seal.

14             With regard to D462 --

15             JUDGE ORIE:  But let me see.  I think that we have the unredacted

16     originals now uploaded, isn't it?  That's why we needed the revised

17     English translations.

18             MR. BAKRAC: [Interpretation] Your Honour, I do apologise, there

19     was a bit of a misunderstanding with my colleague here.

20             So we do have the revised document uploaded, the revised

21     translation of this document, that is.  We don't have the unredacted one.

22             JUDGE ORIE:  Yes.  I do understand that with the uploading of the

23     revised translation that, under D456 and D462, we have two unredacted

24     documents with their full translations.  And I take it that the

25     unredacted documents are the result of the work done by the Prosecution;

Page 20147

 1     that is, turning the pages, et cetera, which apparently still had to be

 2     done.

 3             But, Mr. Bakrac, are you sure that you have uploaded the

 4     unredacted version which was only recently received and which was, as we

 5     understood, accompanied by some elements which were foreign to the

 6     original redacted ones?

 7             MR. BAKRAC: [Interpretation] No, Your Honour.  My mistake.  I

 8     corrected myself.  I misunderstood what my colleague said.  What we

 9     uploaded was the redacted document, and also a revised translation, too.

10             JUDGE ORIE:  Yes, but revised translation which do not match with

11     originals is not something the Chamber could accept.

12             D456 is -- the Chamber denies admission as matters stand now of

13     D456 and D462.

14             However, the Chamber admits P2995, which is related to D456.

15             So D456 and D462 marked, not admitted.

16                           [Trial Chamber and Registrar confer]

17             JUDGE ORIE:  Ms. Harbour, as far as the description of the

18     now-non-admitted document is concerned, I would like you to confer with

19     the Registry so as to agree on what is the right description.

20             It seems to be not as simple perhaps as it looked.

21             THE REGISTRAR:  With your leave, Your Honour, I would just -- to

22     clarify the description that you were referring to is description that

23     was initially entered by the party, but this description is not anymore

24     part of the exhibit, as the admitted one, because it [indiscernible]

25     there is another inscription inserted by the Registry, so you can refer

Page 20148

 1     to that description which is now part of the exhibit when it is admitted.

 2     Now it is not admitted, so it is irrelevant, but in general.

 3             Thank you.

 4             JUDGE ORIE:  Yes.  One second, because ...

 5             Yes.  So P2995 is admitted into evidence.

 6             We move on.  D463, which is a redacted version of P3130.

 7     Therefore, D463 is vacated.

 8             The Prosecution has requested that redacted versions of personnel

 9     files, including D463, remain in evidence.  However, with a view to the

10     Chamber's decision of the 23rd of August, 2010, on the issue of public

11     redacted versions of confidential exhibits, the request of the

12     Prosecution is denied.  If you look at that decision, you'll see what the

13     Chamber expects the parties to do at the end of the case with redacted

14     versions.

15             MS. HARBOUR:  Thank you, Your Honour.  I will look at that

16     decision.  With respect to the documents that you have just denied, D462

17     and D456, I did want to put on the record, both for Your Honours' benefit

18     and also for the benefit of the Defence, that there are still pending

19     code PF issues that we are trying to resolve internally which may have

20     gotten in the way of the Defence being able to upload the unredacted

21     version of those files.

22             JUDGE ORIE:  Yes.  Of course, the Chamber has in more general

23     terms said that if any party on the basis of developments unknown until

24     now, although perhaps expected, would seek to have something admitted,

25     document admitted into evidence, then, of course, they may address the

Page 20149

 1     Chamber.  I think we gave as an example, documents to be received in

 2     unredacted form from the Republic of Serbia.

 3             So that door is not open but also not closed.

 4             Next one, D465.  The Simatovic Defence was to provide a legible

 5     original and a revised translation.

 6             Has it been provided and uploaded?

 7             MR. BAKRAC: [Interpretation] Your Honour, not yet.  We haven't

 8     done that yet.

 9             JUDGE ORIE:  D465 is not admitted into evidence.  It is marked,

10     not admitted.

11             Then I'd like to now read the reasons for a decision admitting

12     ten documents from the bar table.

13             The Chamber will now provide reasons for its decision to admit

14     documents now numbered D1120 to D1129 under seal, referenced at

15     pages 20.096 and 20.097 of the trial transcript.  These reasons were

16     requested by the Prosecution in an informal communication sent to the

17     Chamber on the 8th of June, 2012.

18             The ten documents are excerpts of larger reports and were

19     tendered as part of the Stanisic Defence bar table motion of the 17th of

20     February, 2012.  The Prosecution responded to the motion on the 23rd of

21     March.  The Simatovic Defence did not make any submissions in respect of

22     the motion.

23             The documents concern actions taken by various agencies against

24     Serbian and Croatian extremism during the years 1990 to 1995.  Each

25     document was identified by the Stanisic Defence as illustrating both


Page 20150

 1     positive and negative conclusions supporting their case, thus being

 2     relevant.

 3             The Prosecution objected to the admission of these documents,

 4     stating that the documents lack context because they are excerpts of

 5     larger documents and, as a result, their probative value, and I quote:

 6             "Is diminished to the point where the materials cannot be

 7     reasonably relied upon for the reasons put forth or to exclude the

 8     involvement of the Serbian DB in additional activities, as alleged in the

 9     Third Amended Indictment."

10             In particular, the Prosecution objected to the admission of the

11     excerpts to draw a negative inference, contending that such inferences

12     cannot be reasonably drawn or relied upon in the absence of the full

13     report.

14             The relevant law for admitting documents from the bar table is

15     Rule 89 of the Rules of Procedure and Evidence which provides, in part,

16     that a chamber may admit any relevant evidence which it deems to have

17     probative value; and may exclude evidence if its probative value is

18     substantially outweighed by the need to ensure a fair trial.

19             Further, the Chamber also requires that the tendering party must

20     be able to demonstrate, with clarity and specificity, where and how each

21     document fits into its case.

22             That a document is an excerpt of a larger document is not a

23     reason in itself to bar its admission into evidence.  The Trial Chamber

24     found that these documents were sufficiently probative to be admitted

25     from the bar table and that, for each document, the Stanisic Defence had

Page 20151

 1     adequately identified with sufficient clarity and specificity its

 2     contents, why in its view it is relevant, and to which aspect of its case

 3     it relates to.

 4             However, the Chamber considered that all parties should have

 5     access to the larger documents so as to enable them to contextualise any

 6     tendered portions, especially where a negative inference is sought.  In

 7     this respect, during last week's housekeeping session at pages 20.062 and

 8     20.063 of the trial transcript, it was confirmed by both the

 9     Stanisic Defence and the Prosecution that the latter had access to the

10     entire reports from which these documents were excerpted.

11             The Chamber deemed that these documents met the standard for

12     admission set out in Rule 89 of the Tribunal's Rules of Procedure and

13     Evidence and therefore admitted them into evidence from the bar table;

14     however, the Chamber does note that, although these documents meet the

15     standard for admission, it may be especially problematic to rely upon a

16     relatively small portion of a document to show that something did not

17     occur because the document makes no reference to it.

18             And this concludes the Chamber's reason.

19             There is another decision which I will deliver, although the

20     disposition of that decision, I think, has been already communicated with

21     the parties in the Status Conference on Thursday, the 7th of June.

22             It is the decision on the Prosecution motion to admit rebuttal

23     expert testimony and expert report filed on the 8th of May, 2012.

24             In this motion, the Prosecution seeks to call as rebuttal

25     evidence proposed expert witnesses Berger and Meuwly from the

Page 20152

 1     Netherlands Forensic Institute and to tender their expert report and CVs.

 2             In doing so, the Prosecution seeks to rebut Stanisic Defence

 3     expert Brown's evidence.  Browne testified as an expert witness in

 4     relation to the Mladic notebooks.

 5             The Chamber has admitted Book 16 of the Mladic notebook in its

 6     entirety as D767.  Book 16 was tendered by the Stanisic Defence during

 7     Witness Browne's testimony.  In his report, Browne emphasise the damage

 8     to Book 16.  I refer to paragraphs 54 through 59 and Section 5 of his

 9     report.  In addition, the Chamber has admitted various excerpts from the

10     notebooks as Prosecution exhibits.  Browne's report challenges the

11     reliability of these notebooks.

12             The Prosecution contends that Browne's credibility and the weight

13     to be attached to his report are significant issues arising from the

14     Defence case which it could not have anticipated.

15             Neither the Stanisic, nor the Simatovic Defence, responded to

16     this request.

17             The Appeals Chamber has held that rebuttal evidence must be

18     highly probative and must relate to a significant issue arising directly

19     out of evidence -- Defence evidence which could not have been reasonably

20     anticipated.  This can be found in the Naletilic and Martinovic Judgement

21     of the 3rd of May, 2006, paragraph 258.

22             The Chamber considers the following relevant factors.

23             First, the Chamber understands that the Prosecution seeks to

24     challenge Browne's methodology and conclusions rather than his factual

25     observations regarding the notebooks.  In this respect, the Chamber notes

Page 20153

 1     that expert witnesses Berger and Meuwly were asked to review Browne's

 2     report based on the information contained in the report itself and

 3     without reviewing the original notebooks.

 4             Second, Browne was cross-examined at length about his methodology

 5     and conclusions.  The Prosecution had ample opportunity to prepare for

 6     and challenge Brown's evidence during the Defence case in court and made

 7     use thereof.  In addition, the parties will have further opportunity to

 8     make submissions regarding the weight to be attached to this evidence in

 9     their final briefs, and/or closing arguments.

10             For these reason, the Chamber considers that the issue of

11     Browne's methodology has been explored in depth and was dealt with

12     comprehensively during the Defence case.  The assistance to be expected

13     from the testimony of two additional expert witnesses or an additional

14     expert report regarding Browne's methodology and conclusions is not such

15     as to warrants the proffered rebuttal evidence.

16             Under these circumstances, the request does not meet the standard

17     for rebuttal.  Consequently, the Chamber denies the Prosecution's request

18     for leave to present the aforementioned rebuttal evidence.

19             And this concludes the Chamber's decision.

20             I move on to the next item on my agenda.  And I would like to

21     invite the Prosecution to specify which of Exhibits P3146 up to and

22     including 3156 need to be under seal.

23             MR. FARR:  Your Honours, could we get back to the Chamber after

24     the first break on that topic.

25             JUDGE ORIE:  If there would be anything after the first break,


Page 20154

 1     you will -- but try to find out already, to --

 2             MR. FARR:  Yes, Your Honour.

 3             JUDGE ORIE:  Next item on my agenda is to responses to the third

 4     Stanisic bar table motion.

 5             On the 8th of June, the Prosecution, in an informal

 6     communication, noted that the documents, the admission of which is sought

 7     in the Stanisic Defence's third bar table motion, are not released in

 8     e-court.  It requested a response time of two weeks from the date of

 9     release on e-court.

10             On the same day, the Stanisic Defence indicated that the

11     documents had been released.  Accordingly, the Chamber expects responses

12     to the motion by the 22nd of June, 2012.

13             Next item on my agenda is the Babic rebuttal motion.

14             On the 11th of June, 2012, the Prosecution, through an informal

15     communication, requested to be allowed to submit a consolidated filing by

16     the 15th of June, 2012 to address the Stanisic Defence's admission of the

17     5th of June, in relation to further evidence of Milan Babic.

18             This request is hereby granted.

19             My next item relates to D666.  The Chamber does understand that

20     the whole of this video has been transcribed and that a translation is

21     available.

22             Madam Registrar, if you received the transcript and the

23     translation, you're hereby instructed to make the necessary changes on

24     e-court.  If you could confirm that you have received them, the Chamber

25     could decide on admission.

Page 20155

 1             THE REGISTRAR:  No, Your Honour, I have not yet received a

 2     transcript.

 3             MR. FARR:  Your Honour, we have the references.  They have been

 4     uploaded.

 5             The B/C/S transcript is uploaded with doc ID V000-9108, and the

 6     English transcript is uploaded as V000-9108-ET.

 7             JUDGE ORIE:  Madam Registrar, are you able to identify these

 8     documents as being uploaded?

 9             THE REGISTRAR:  No, Your Honour.  I cannot see anything in

10     e-court with these numbers.

11             MR. FARR:  We're releasing them right now, Your Honour.

12             JUDGE ORIE:  We, meanwhile, will move on and hear later from

13     Madam Registrar whether she now has them in e-court.

14             And we move on with what remained on the MFI list.  And I think

15     we start at D688.

16             RDB Nis centre's document.  Translation was to be uploaded.

17             Mr. Jordash.

18             MR. JORDASH:  Translation is still pending with TTS,

19     unfortunately.

20             JUDGE ORIE:  Then D688 is not admitted.  Therefore, the status

21     changes to MNA.

22             D692, I think, same report, as far as the Chamber is concerned.

23             Mr. Bakrac, translation uploaded yet?

24             MR. BAKRAC: [Interpretation] Your Honours, the translation is

25     uploaded into e-court.

Page 20156

 1             JUDGE ORIE:  Madam Registrar, do you need a document number or

 2     were you able to ...

 3             THE REGISTRAR:  Yes, Your Honour, I would need a reference to ...

 4             JUDGE ORIE:  Mr. Bakrac.

 5             MR. BAKRAC: [Interpretation] 2D1057.

 6             JUDGE ORIE:  Madam Registrar.

 7             THE REGISTRAR:  Yes, Your Honour, I can locate it.

 8             JUDGE ORIE:  Then 2D1057 may be attached as translation to D692

 9     in e-court.  And D692 is admitted into evidence.

10             D768.  Have the photos been uploaded?

11             Mr. Jordash.  The Browne photographs from the Mladic notebooks

12     seizure.

13             MR. JORDASH:  Yes, they have.  At 1D05584.

14             JUDGE ORIE:  Madam Registrar, can you confirm.

15             THE REGISTRAR:  Yes, Your Honour.

16             JUDGE ORIE:  Then the photographs which were provisionally marked

17     as D768 are hereby admitted into evidence.

18             We move onto D795, the revised expert report of Milan Milosevic.

19             Mr. Bakrac, it's a report you have tendered.  There was a

20     statement from the Prosecution on this report, which, I take it, is still

21     supported by the Prosecution.

22             MR. FARR:  Your Honour, in fact in light of the Chamber's

23     admission of P3146 to P3156, the Prosecution withdraws its objection to

24     D795.  In addition, we withdraw our objection to the underlying

25     documents, D798 up to and including D853.

Page 20157

 1             We maintain our objection to D797 because P2394 is a more

 2     reliable depiction of the matters that D797 purports to show.  And I can

 3     make more complete submissions on that, if the Chamber would like.

 4             JUDGE ORIE:  Mr. Bakrac, Mr. Farr stated that D797 should not be

 5     admitted because P2394 would be -- would give a more reliable depiction.

 6             Do you agree with that or ...

 7             MR. BAKRAC: [Interpretation] Your Honour, I think that I can

 8     agree with the position of Mr. Farr.

 9             JUDGE ORIE:  Which --

10             MR. BAKRAC: [Interpretation] Yes.

11             JUDGE ORIE:  Does that mean that you withdraw D979 [sic]?

12             MR. BAKRAC: [Interpretation] Yes, Your Honour.

13             JUDGE ORIE:  D979 [sic] is vacated.

14             MR. BAKRAC: [Interpretation] Your Honour, I think there's been an

15     error.  I think it's "797."

16             JUDGE ORIE:  You're right, Mr. Bakrac.  I wrote it down wrongly.

17             D797, therefore, is vacated.  But I think we first have to go

18     back to D795, to start with, which is the revised expert report.  Yes.

19             No further objections.  The Chamber admits D795, and, as always,

20     will, of course, in evaluating the evidence will give due consideration

21     to the testimony of Mr. Milosevic in relation to his report.

22             Then D797 being vacated, we move onto D798.

23             D798 up to and including D852 are admitted into evidence with a

24     similar note that, of course, the Chamber will, again, as always, give

25     due consideration to the testimony of the witness through which these

Page 20158

 1     documents were tendered.

 2             The Chamber also admits D228.  We skipped that last Thursday but

 3     it is also an underlying document of the report.  D798 up to and

 4     including D852 and D228 are admitted into evidence.  I think I said that

 5     already, so now twice admitted.

 6             For D853, I think we were still waiting for a translation.  Has

 7     that been uploaded, Mr. Bakrac?

 8             MR. BAKRAC: [Interpretation] Yes, Your Honour.  This document has

 9     been uploaded into e-court as 2D1689.

10             JUDGE ORIE:  Madam Registrar, can you confirm that for 2D1689 an

11     English translations have been uploaded.

12             THE REGISTRAR:  Yes, Your Honour.

13             JUDGE ORIE:  It may be attached to the original, the B/C/S

14     original.  D853 is admitted into evidence.

15             I move on.  D865, still waiting for a translation.

16             Mr. Bakrac.

17             MR. BAKRAC: [Interpretation] Your Honour, we have the translation

18     for this document, and that is 1219.1.

19             JUDGE ORIE:  Madam Registrar, can you confirm that an English

20     translation has been uploaded for this document?

21             THE REGISTRAR:  Your Honour, I'm not able to locate the document

22     with this number.

23             MR. BAKRAC: [Interpretation] Your Honour, possibly there is an

24     error.  I didn't say the "2D" so it's 2D1219.1.

25             THE REGISTRAR:  Yes, Your Honour, this is available in e-court.

Page 20159

 1             JUDGE ORIE:  If that is available in e-court, then D -- then it's

 2     the -- the English translation may be attached to the original and D865

 3     is admitted into evidence.

 4             Next on my list is D869, which was tendered from the bar table

 5     but not in a written submission but in e-court.  Transcript page 19529.

 6     We're still waiting for the position of the Prosecution in relation to

 7     this document.

 8             MS. HARBOUR:  Yes, Your Honour.  I believe that the same applies

 9     to D868 and D869 and D870.

10             So with your leave, I'll just present our position on all three

11     of those documents.

12             JUDGE ORIE:  Before you do so, one second, please.

13                           [Trial Chamber and Legal Officer confer]

14             JUDGE ORIE:  Perhaps we could also check with Madam Registrar.

15     D868, what is the status at this moment in e-court, Madam Registrar?

16             THE REGISTRAR:  It is MFI, Your Honour.

17             JUDGE ORIE:  It is MFI.  Then for unknown reasons, where it was

18     on my list, it is now not anymore.

19             Therefore, I'd like to receive your position in relation to D868,

20     D869, and D870.

21             MS. HARBOUR:  The Stanisic Defence tendered these documents from

22     the bar table during Witness Dejan Plahuta's testimony on

23     17th of May, 2012.  We understand from the context in which it was

24     tendered and which they were tendered that the Stanisic Defence considers

25     these relevant to demonstrate that the Red Berets from Bratunac were

Page 20160

 1     subordinated to either the VRS or Republika Srpska in 1994 when these

 2     documents were written.

 3             The Prosecution does not agree with the Defence's interpretation

 4     if it excludes any connection between the Serbian DB and the Bratunac

 5     Red Berets.  But we agree that this is a live issue in the case and we

 6     received the documents through official channels so we have no objection

 7     to admission.

 8             JUDGE ORIE:  Yes.  Now, the puzzle in relation to D868, I do

 9     understand that D868 may have been admitted already through a written bar

10     table decision.  Apparently that status is not yet in e-court but it

11     could be there is still one decision, I think, to be delivered; that is,

12     the ninth decision on the Stanisic bar table motion.

13             So we'll verify whether it's in one of the decisions already

14     delivered or whether it would be in the decision still to be delivered.

15             Therefore, at this very moment, I leave that open and do not

16     decide on D868.

17             But D869 and D870 are admitted into evidence.  Perhaps we take a

18     very short break soon and perhaps deal with that after the -- after the

19     break.

20             I move on to D871.  I do understand that a translation has been

21     uploaded.  Meanwhile, Madam Registrar, is a translation attached to D871?

22             THE REGISTRAR:  Yes, Your Honours, it is.

23             JUDGE ORIE:  D871 is admitted into evidence.

24             D901, the Office of the Prosecution was seeking further

25     information on the origin of the document and the Simatovic Defence

Page 20161

 1     indicated that it would submit that info to the OTP.

 2             Any info provided to the Prosecution?

 3             MR. FARR:  Your Honour, there hasn't been that I'm aware of.

 4     There is an another issue related to D901 --

 5             JUDGE ORIE:  If you would not mind that we first focus on the

 6     matter I raised, unless you would say that [Overlapping speakers] ...

 7             MR. FARR:  The issue is that it is the wrong document in e-court.

 8     So in case anything were to be vacated, I don't believe it's what is

 9     currently marked as an admitted exhibit.  D901 and D902 appear to be

10     documents that were admitted pursuant to a bar table motion, and it seems

11     as though that exhibit number may have been used twice:  Once in court

12     and once as a result of a bar table motion.

13             JUDGE ORIE:  Mr. Bakrac, first, any information provided to the

14     OTP on the relation -- in relation of a document which may be the wrong

15     document?

16             MR. BAKRAC: [Interpretation] Your Honour, may I check this?  In

17     our records, it's a document submitted by the Stanisic Defence.  Possibly

18     I'm wrong but I would just like to check.

19             JUDGE ORIE:  Is that part of the errors, Mr. Farr?

20             MR. FARR:  What seems to have happened is that a document

21     tendered by the Stanisic Defence through the bar table motion was

22     admitted as 901 and a separate document tendered by the Stanisic Defence

23     was admitted by the bar table motion as 902.

24             The two documents that we were seeking provenance information on

25     from the Simatovic Defence --

Page 20162

 1             JUDGE ORIE:  If we could first perhaps --

 2             MR. FARR:  Yeah.

 3             JUDGE ORIE:  Could you give the Chamber a brief description of

 4     the documents you said were admitted through a bar table motion.  Is that

 5     the same description as we find here?  That is, D901 related to the

 6     monitoring of telephone calls of Daniel Snedden; and D902, report on the

 7     results of the application of a measure with subject "Farisej," or are

 8     the descriptions different?

 9             MR. FARR:  They're different from what Your Honour has just read.

10             JUDGE ORIE:  So what we then would need, first of all,

11     apparently, the documents we are talking about here, description is right

12     on the list as I just briefly referred to it, but you say the numbers are

13     wrong because these numbers have been used already for other documents.

14             I'd first like to hear from Madam Registrar what is, at this

15     moment, in e-court under D901 and D902.

16             THE REGISTRAR:  Your Honour, there are apparently two documents

17     with the same numbers because at the same time the motions were filed and

18     documents were assigned in court.  So they were duplicates.  We would

19     need to reassign them new numbers.

20             JUDGE ORIE:  They were duplicates.  Then I suggest the following

21     that, first of all, new numbers will be assigned, first, to a document

22     tendered through Simatovic Defence Witness Micic, with the description:

23     Proposal for the secret monitoring of telephone calls, Daniel Snedden, an

24     Australian citizen of Yugoslav origin.

25             Madam Registrar, that document would receive number ...

Page 20163

 1             THE REGISTRAR:  Number D1290, Your Honours.

 2             JUDGE ORIE:  Next document:  Report on the results of the

 3     application of a measure with subject "Farisej" signed by the witness.

 4             That document would receive ...

 5             THE REGISTRAR:  Number D1291, Your Honours.

 6             JUDGE ORIE:  1291.

 7             Then, Mr. Bakrac, have you provided any info on the origin of the

 8     document related to the monitoring of telephone calls, Daniel Snedden?

 9             MR. BAKRAC: [Interpretation] Your Honour, that is part of the

10     documentation we received pursuant to our request from the state.  And if

11     Mr. Farr wishes to see that, this is part of a large number of documents

12     which we received regarding the intercepted conversations by the

13     Republic of Serbia of Daniel Snedden, and then we received those

14     documents pursuant to our Request for Assistance.

15             JUDGE ORIE:  Mr. Farr.

16             MR. FARR:  Your Honour, we generally do request the opportunity

17     to briefly look at the correspondence.  If we could have that

18     opportunity, we could revert to the Chamber very shortly.

19             JUDGE ORIE:  Yes.  Then we move to the last one, which is now

20     D1291.  There, we were waiting for a translation.

21             Mr. Bakrac, any translation uploaded?

22             MR. BAKRAC: [Interpretation] Your Honour, if I understood you

23     correctly, D1291?

24             JUDGE ORIE:  Yes.  A report on the results of the application of

25     a measure with subject "Farisej" signed by the witness, which was, until

Page 20164

 1     five minutes ago, known under the number D902?

 2             THE REGISTRAR:  If I may clarify, this is 2D.  It's 65 ter

 3     2D00459.2.

 4             JUDGE ORIE:  Is any translation uploaded, Madam Registrar?

 5             THE REGISTRAR:  Yes, it is, Your Honour.

 6             JUDGE ORIE:  It is.  Then D1291 is admitted into evidence.

 7             We will take a short break.  After the break, Mr. Farr, we expect

 8     further information about whether those ten documents would need to be

 9     under seal.  During the break, the Chamber will look in more detail at

10     D868 to see whether it was already admitted or not yet admitted on the

11     basis of a written bar table motion.  And the Prosecution has an

12     opportunity to inspect any correspondence related to D1290, known until

13     recently under the number D901.

14             The Chamber, however, before taking a break, would like to know

15     whether the parties would want to raise any further matter?

16             MR. FARR:  Your Honour, we have three corrected translations that

17     were resulted either from a Chamber inquiry or from a query both of the

18     parties.  We have uploaded revised translations.  Those relate to P974,

19     P2401, and P2546.

20             JUDGE ORIE:  No other matter.

21             MR. FARR:  Apologies, one more.  P3169 as well.

22             JUDGE ORIE:  So that makes four documents.

23             MR. FARR:  And one more as well, Your Honour.  P3123.

24             JUDGE ORIE:  I'm now at five, Mr. Farr.

25             In football stadiums, people are always crying for ten.  I'll not

Page 20165

 1     do that.  So it stays at five, the score.

 2             MR. FARR:  It will stay there for now, Your Honour.

 3             JUDGE ORIE:  And, Madam Registrar, perhaps during the break you

 4     could verify whether the corrected translations are in your possession.

 5             Any other matters to be raised by the Stanisic Defence?

 6             MR. JORDASH:  No, thank you.

 7             JUDGE ORIE:  Any other matter to be raised by the Simatovic

 8     Defence?  Any other matter that I referred to earlier.

 9             MR. BAKRAC: [Interpretation] No, Your Honour.

10             JUDGE ORIE:  Then we will take a break.  I'm looking at you,

11     Mr. Farr.  How much time would you need for the whether or not under

12     seal.

13             MR. FARR:  Your Honour, I have actually gotten a note.  I can

14     answer that right now or immediately after the break.

15             JUDGE ORIE:  Whatever is done now is already completed.  What we

16     would need, Mr. Farr, is information about P3146 up to and including

17     3156.  So that is for 11 documents.

18             MR. FARR:  Your Honour, five of those documents should be under

19     seal.  They are P3147, P3148, P3152, P3155, and P3156.

20             JUDGE ORIE:  All the others are public documents.

21             Madam Registrar, would you please take care that 3147, 3148,

22     3152, 3155 and 3156 are kept under seal.  You don't need further time for

23     that.

24             Mr. -- how much time -- do you have the information the

25     Prosecution would like to have a look at in relation to the monitoring of

Page 20166

 1     phone calls from Daniel Snedden?  Do you have that information readily

 2     available so that ...

 3             MR. BAKRAC: [Interpretation] Your Honour, I'm looking at it right

 4     now, the list of 111 documents that we received.  My colleague and I are

 5     looking at it and we're trying to identify these two, the two that are in

 6     question, and we'll try to let Mr. Farr know.

 7             JUDGE ORIE:  Yes.  Would 15 minute do to look at it and ...

 8             MR. FARR:  Yes, Your Honour.

 9             JUDGE ORIE:  Then, Madam Registrar, were you already able to

10     verify whether the new, the corrected translations for P974 and the other

11     four numbers mentioned by Mr. Farr are received and uploaded?

12             THE REGISTRAR:  I would just need some reference to numbers under

13     which they are uploaded.

14             JUDGE ORIE:  Then I suggest that Mr. Farr gives that to you

15     during the break.  And that we would resume at 4.25, and then it will

16     only be a matter of minutes to conclude this housekeeping session.

17             We take a break.

18                           --- Recess taken at 4.07 p.m.

19                           --- On resuming at 4.30 p.m.

20             JUDGE ORIE:  A few issues left.

21             D868, which is marked for identification.  What is the --

22     Madam Registrar, could you tell us what the -- what the doc ID -- what

23     the 65 ter number is.

24             THE REGISTRAR: [Microphone not activated] 65 ter number is

25     1D2002, Your Honours.

Page 20167

 1             JUDGE ORIE:  Thank you, Madam Registrar.

 2             In the second decision on the bar table motion filed by the

 3     Stanisic Defence on the 17th of February, in paragraph 17, under 1, I

 4     read it is admitted into evidence the documents bearing, and then among

 5     those numbers, 1D02002.

 6             Therefore, Madam Registrar, could it be that those dispositions

 7     have not yet been fully -- been included in e-court; or is it that -- is

 8     a number known already for this document?

 9             THE REGISTRAR:  Yes, Your Honour.  It was mentioned only verbal.

10     It has existed D number MFI'd and it's been updated in e-court now.

11             JUDGE ORIE:  Which means that it is now known in e-court still as

12     D868.

13             THE REGISTRAR: [Microphone not activated] Yes, Your Honour.

14             JUDGE ORIE:  And that now new number had be to assigned to it.

15             THE REGISTRAR:  And it's indicated in the Registry's memo that

16     the number was already preassigned so that it didn't receive a new

17     number.

18             JUDGE ORIE:  Yes.  Therefore, there's no need -- there was no

19     need to make further submissions on D868 because it was admitted already

20     in evidence.

21             Then, next one, D666, video.  Has it been -- Madam Registrar,

22     were you informed by the Prosecution about the exhibit number and have

23     you been able to verify whether it is uploaded into e-court, at least the

24     transcript both in B/C/S and English.

25             THE REGISTRAR:  Yes, Your Honours, numbers that the Prosecution

Page 20168

 1     indicated in previous session have been released now, so I was able to

 2     locate it and I was provided during the break with the video of the full

 3     document D666.

 4             JUDGE ORIE:  So nothing opposes admission anymore.

 5             D666 is admitted into evidence.

 6             The last one, was the Prosecution in a position to verify over

 7     the break the information on the origin of D1290, earlier known as D901.

 8             MR. FARR:  We were, Your Honour, and we withdraw our objection.

 9             JUDGE ORIE:  D1290 is admitted into evidence.

10             If I'm not mistaken, there's nothing left at this moment.

11             Yes.

12             MR. BAKRAC: [Interpretation] Your Honour.  Your Honour, yes, my

13     mistake, so I kindly ask that we make this correction.  D506 was admitted

14     last week and was uploaded as 2D910.1.

15             So could it please be replaced by 2D901.2.  Sorry, 910.2.

16             JUDGE ORIE:  Yes.  Could you please refresh my recollection.

17     D560 is what and what was the reason for it to be replaced?

18             MR. BAKRAC: [Interpretation] Your Honour, D572 was supposed to be

19     taken out of the table - that is that table with Witness Lucic - so was

20     D572; that was supposed to be moved out.  That was done.  And 2D910.2 is

21     this new version.

22             JUDGE ORIE:  I'm a bit lost perhaps.

23             You said the following, Mr. Bakrac:  D506 was admitted last week

24     and was uploaded as 2D910.1.

25             MR. BAKRAC: [Interpretation] Your Honour, Your Honour, perhaps

Page 20169

 1     it's my mistake.  I wasn't following.  D560 is the actual number.

 2             JUDGE ORIE:  Yes --

 3             MR. BAKRAC: [Interpretation] I think that's what I read out but

 4     possibly --

 5             JUDGE ORIE:  Well, that's at least what I heard.  Because I then

 6     said D560 is what, and what was the reason for it to be replaced?

 7             And then you continued but with the reference to D572.  Is that

 8     one of the documents to be removed from the table which is D560 and that

 9     once it was removed from D572 --

10             MR. BAKRAC: [Interpretation] Precisely, Your Honour.  Once that

11     is removed, without that document, is 2D910.2.

12                           [Trial Chamber and Registrar confer]

13             JUDGE ORIE:  Yes.  Now I see that I earlier made a mistake again.

14     Where I said one of the documents to be removed from the table which is

15     D560, and once D572 was removed, D560 was ready to be admitted, if I

16     understand you well.  And then D560 now has received a different document

17     ID which is now 2D910.2, and that is the version without D572.

18             Madam Registrar.

19             MR. BAKRAC: [Interpretation] Precisely, Your Honour.  Thank you

20     very much.

21             JUDGE ORIE:  Have you received the new version of D560.

22             THE REGISTRAR:  Yes, Your Honours, it's available in the e-court.

23             JUDGE ORIE:  Then it may replace the previous document which was

24     2D910.1, so the .2 version replaces it, and I think then there's nothing

25     which would further oppose admission.

Page 20170

 1             D560 is admitted into evidence.

 2             Any need to have it under seal, Mr. Bakrac?

 3             MR. BAKRAC: [Interpretation] Yes, Your Honour.

 4             I do apologise.  Just a second, please.

 5                           [Trial Chamber and Registrar confer]

 6             MR. BAKRAC: [Interpretation] Your Honour, I think that it doesn't

 7     really have to be under seal.  It's a list of documents.

 8             JUDGE ORIE:  Yes.  Well, if at least, even on a list it can be --

 9     it can -- may be a need, but if you say so then it's your exhibit.  And,

10     therefore, it is a public document, D560.

11             Having dealt with everything, Mr. Jordash.

12             MR. JORDASH:  Sorry, there's one more thing, Your Honour.  It's

13     concerning a document which is attached to D431.  At the moment 1D3565 is

14     attached and, in fact, that should be replaced by 1D3565.1.

15             JUDGE ORIE:  And could you refresh my memory what D431 is and

16     what caused the change?

17             MR. JORDASH:  I might have to ask.  Thank you.

18             JUDGE ORIE:  Yes, Ms. Harbour, you're taking over the

19     responsibilities of the Defence.

20             MS. HARBOUR:  Yes, if I can assist, Your Honour.

21             D431 is an Official Note, and it was originally tendered as a

22     copy, a photocopy of a note retrieved from a published book.  And

23     subsequently the Stanisic Defence obtained the original version of that

24     note which they uploaded, but currently that original version has not yet

25     been attached to the exhibit in e-court.

Page 20171

 1             JUDGE ORIE:  Yes.  I take it not to be attached but to replace

 2     the uploaded version.

 3             MS. HARBOUR:  Yes, Your Honour.

 4             JUDGE ORIE:  Has no effect on the translation.  It is literally

 5     the same which one would expect.

 6             MS. HARBOUR:  I have not verified that, Your Honour.

 7             JUDGE ORIE:  Mr. Jordash, if you replaces the original by another

 8     one at least there is a need to briefly verify whether the text is the

 9     same, because, otherwise, the translation would have --

10             MR. JORDASH:  I think we have verified, but I can check that and

11     let Your Honours know.

12             JUDGE ORIE:  That's on the assumption that it has been verified

13     and both parties could have a look at it.  We already allow the

14     replacement of the present version of D431, which is 1D3565, by the new

15     version, which is 1D3565.1.

16             Any other matter?

17             MR. FARR:  Your Honour, I just need to add one document to the

18     list of the five documents for which we have revised translations

19     available.

20             The sixth document is P676.

21             JUDGE ORIE:  Yes.  Madam Registrar, we have now six -- we will

22     not go to ten, Mr. Farr.

23             MR. FARR:  No, Your Honour, I think it's six.

24             JUDGE ORIE:  It's really six.  It remains at six, the score.

25             Madam Registrar, were you able to verify whether you have

Page 20172

 1     received translations for a the six documents referred to by Mr. Farr?

 2             THE REGISTRAR:  Yes, Your Honour, I have received translations

 3     for all six documents.

 4             JUDGE ORIE:  And you may replace the present translation and

 5     attach the new translations to the exhibits.

 6             Any other matter?  It's -- it's -- it sounds like a conspiracy.

 7     From every corner, someone is on his feet and ...

 8             Ms. Harbour.

 9             MS. HARBOUR:  Yes, Your Honour.  This is the last matter that I

10     will bring to your attention.

11             During Witness Osman Selak's testimony, the Defence tendered a

12     number of underlying documents and they were tendered provisionally under

13     seal out of an abundance of caution and I have subsequently verified that

14     all of them can be public exhibits.  So if Your Honour would like, I can

15     read out the exhibit numbers -- or the exhibit ranges.

16             JUDGE ORIE:  Yes.  How long is the list?

17             MS. HARBOUR:  In terms of ranges, three ranges.

18             JUDGE ORIE:  Yes.  Okay.  If you then please read it slowly so

19     that our transcriber and our interpreters are able to follow you.

20             MS. HARBOUR:  D701.  That's the first range.  It's just one

21     document.

22             The second range is D703 up to and including D729.

23             And the final range is D731 up to and including D740.

24             JUDGE ORIE:  Yes.  They were confidential at the request of the

25     Prosecution?

Page 20173

 1             MS. HARBOUR:  At the request of the Chamber.

 2             JUDGE ORIE:  Of the Chamber.  That's -- and we asked you to

 3     verify whether there was any reason to ...

 4             MS. HARBOUR:  The Chamber indicated at the time that they should

 5     be verified, did not state who should, but since they were Prosecution

 6     documents - received from the Prosecution, I should say, not tendered by

 7     the Prosecution - I verified them.

 8             JUDGE ORIE:  Yes.  Then, under those circumstances, the

 9     under-seal status of D701; D703 up to and including D729; and D731 up to

10     and including D740, is changed in public.

11             Madam Registrar, you are hereby invited to make those changes in

12     e-court.

13             I hardly dare to ask whether there's any other matter?  No.

14     Apparently there is not.

15             We have not yet scheduled our next hearing.  Therefore, we

16     adjourn sine die.

17                            --- Whereupon the hearing adjourned at 4.47 p.m.,

18                           sine die.