1 Friday, 17 September 2010
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.06 a.m.
5 THE REGISTRAR: Good morning, Your Honours. Good morning to
6 everyone in and around the courtroom.
7 This is case IT-08-91-T, the Prosecutor versus Mico Stanisic and
8 Stojan Zupljanin.
9 Thank you, Your Honours.
10 JUDGE HALL: Thank you, Mr. Registrar.
11 Good morning to everyone.
12 First of all, I note for the record that we reconvene under
13 Rule 15 bis; Judge Harhoff being and sent.
14 May we have the appearances for the day, please.
15 MS. KORNER: Good morning, Your Honours. Joanna Korner and
16 Crispian Smith for the Prosecution.
17 MR. CVIJETIC: [Interpretation] Good morning, Your Honours.
18 Representing Mr. Mico Stanisic's Defence, Mr. Slobodan Cvijetic and
19 Ms. Eugene O'Sullivan.
20 MR. KRGOVIC: [Previous translation continues] ... good morning,
21 Your Honours. Dragan Krgovic, Igor Pantelic, and Aleksandar Aleksic, and
22 Jason Antley, our Case Manager, appearing for Zupljanin Defence.
23 JUDGE HALL: Thank you.
24 MS. KORNER: Your Honours, I'm going to ask to go into private
25 session in a moment to deal with the next witness's protective measures.
1 But before I do that, you may recall that a couple of days ago I raised
2 the question of outstanding matters, one of which was the
3 Mladic notebooks and a ruling.
4 Your Honours, in the last few days, I've been going through the
5 witness who is going to be the first witness after Your Honours' -- after
6 the break, in other words, on Monday week, and the Mladic diaries are
7 relevant to him. And we give no method at the moment of uploading them
8 into e-court, even, because we don't know whether they are going to be
9 added to our 65 ter list. So, if at all possible, it would be very
10 helpful if we could have the ruling this afternoon, given, as I say, the
11 absence in the next week. Because, otherwise, we're going to start on
12 Monday morning not knowing what the situation is, Monday week.
13 MR. PANTELIC: I do apologise, which witness you are mentioning,
14 Ms. Korner?
15 MS. KORNER: [Microphone not activated] ... the one who's coming
16 Monday week.
17 MR. PANTELIC: Yeah, but do we have a name just to have
19 MS. KORNER: [Microphone not activated] ... ST -- the number of
20 the witness I'm just -- asked for ... ST-215.
21 [Trial Chamber and Legal Officer confer]
22 JUDGE HALL: Yes, we will seek to have a decision on that by the
23 end of today, Ms. Korner. Thank you.
24 MS. KORNER: Thank you very much, Your Honours.
25 Your Honours, can I ask that we go into private session.
1 JUDGE HALL: Yes.
2 [Private session]
11 Page 14759 redacted. Private session.
4 [Closed session]
11 Pages 14761-14816 redacted. Closed session.
9 [Open session]
10 THE REGISTRAR: And we're back in open session, Your Honours.
11 JUDGE HALL: Thank you.
12 Is it the expectation of counsel that we reconvene for a third
13 session to dispose of this exhumation matter?
14 MS. KORNER: Yes.
15 JUDGE HALL: Any idea how long you -- you expect to be?
16 MR. ZECEVIC: Your Honours, it's very hard for me to say, but I
17 guess my submission is half an hour, 45 minutes.
18 JUDGE HALL: Very well. So we'd would resume in 20 minutes.
19 --- Recess taken at 12.25 p.m.
20 --- On resuming at 12.50 p.m.
21 MR. ZECEVIC: Your Honours, with your leave, I have two
22 preliminary matters before we start with the exhumations submissions.
23 First of all, Your Honours, I would like to inform the
24 Trial Chamber that 1D370, MFI document, pending -- it was MFI'd pending
25 translation. The translation was uploaded, and I would kindly ask --
1 move the Trial Chamber to remove the MFI of the document. 1D370.
2 JUDGE HALL: Yes, so ordered.
3 MR. ZECEVIC: Thank you very much.
4 Your Honours, I believe we should go into private session because
5 it refers to a confidential document and I wouldn't like to make any
6 mistakes about it.
7 JUDGE HALL: Yes, we go into private session.
8 [Private session]
11 Pages 14819-14820 redacted. Private session.
23 [Open session]
24 THE REGISTRAR: We're back in open session, Your Honours.
25 [Trial Chamber confers]
1 MS. KORNER: Your Honour, can I just very quickly explain the
2 basis of this legal argument.
3 Your Honours will recall that on the 23rd of July of this year we
4 filed a motion to add the proof of death database to our 65 ter exhibit
5 list and tender it into evidence and also asked to remove earlier
6 versions of that.
7 Your Honours, the database which has been put together by, in
8 fact, a number of different analysts, because it began way back in 2001,
9 I believe, contains the evidence showing the -- how the Prosecution are
10 able to arrive at the lists which are attached to the schedules of the
11 indictment of people who died in the scheduled incidents of this
13 JUDGE HALL: [Microphone not activated] ... may I have a moment,
14 please, Ms. Korner.
15 [Trial Chamber confers]
16 JUDGE HALL: Ms. Korner, it occurs to us that, having regard to,
17 without more, the nature of this evidence, that it may be more useful for
18 the Trial Chamber to hear from the Defence first as to what their
19 objection is.
20 MS. KORNER: Yes, a --
21 JUDGE HALL: Do you have a --
22 MS. KORNER: Your Honours, I thought I better just outline to you
23 the basis of this objection before the Defence go into it, and that's
24 this: In that database, there are extra names not mentioned in the
25 schedules because since the schedules to the indictment were drafted, the
1 examination by the analyst has shown that some extra, in fact, in all
2 1.700 names, can be shown to have died in these incidents - not new
3 incidents; same incidents - that are listed on the indictment.
4 But in each case or in most cases, Your Honours will see attached
5 to the names of the -- that are listed in the indictment, the victims
6 including other persons whose identities at this time are either not
7 known or cannot be confirmed by the Prosecution. Where we've been able
8 to establish further identities, that's in the database. That's the
10 JUDGE HALL: Thank you.
11 Yes, Mr. Zecevic.
12 MR. ZECEVIC: Your Honours, I will speak in Serbian in order to
13 be understood completely clear, and I have provided my submission to the
14 interpreters for their benefit.
15 [Interpretation] Your Honours, the procedural facts related to
16 this issue are as follows: The document was first presented with this
17 document, the exhumation spreadsheet, for the first time on the
18 22nd of July this year. At that point, we had talks with the OTP,
19 suggesting that the Defence should inspect and analyse the document and
20 inform the OTP about our position. Nevertheless, to your great surprise,
21 the very next day, the 23rd of July, the OTP submitted to the
22 Trial Chamber the motion proposing that this database be admitted.
23 The OTP and the Defence held two meetings about this issue about
24 which you have been duly informed. Which established, as Ms. Korner
25 stated, that there was a preliminary, legal issue that had to be tackled
1 with Trial Chamber's assistance before we could continue our talks about
2 this problem.
3 The problem is as follows, Your Honours: The second amended
4 indictment in this case was filed on 10th of September, 2009, containing
5 Schedules A through G and an annex containing the list of identified
6 victims in Schedules A and B. The list has a break down based on
7 municipalities and incidents and contains 1.443 persons, with the
8 exception of three cases: Firstly, the Bijeljina incident; secondly the
9 TO warehouse in Donji Vakuf; and thirdly, the Bileca SUP. All the other
10 listed incidents first give a list of victims.
11 And then there is the following sentence, uttered by Ms. Korner:
12 [In English] "Victims included other persons whose identities at
13 this time are either not known or cannot be confirmed by the
15 [Interpretation] I will continue in Serbian. In addition to
16 this, there are two paragraphs of the schedule, item 9.4, the firstly
17 claims two unidentified men as victims. And then item 14.4, it reads,
18 about 150 persons whose identity is unknown to the Prosecution or cannot
19 be verified by the Prosecution at this point in time.
20 Your Honours, may I remained you that it was on several different
21 occasions during the pre-trial stage that the Defence pointed out the
22 absence of clear facts in the indictment. We demanded that additional
23 facts be provided. Our motion was thrown out by the Trial Chamber on two
24 separate occasions, in 2005 and 2009. Having received the database, the
25 exhumation spreadsheet, on the 22nd of July, the Defence concluded that
1 the database had contained as many as 1.795 persons whose names are not
2 to be found in any of the annexes to the indictment.
3 I have to say what our position is. We find it difficult to
4 accept that during the entire investigation, as Ms. Korner suggested,
5 between 2009 -- 2001 and 2009, when the indictment was eventually raised
6 and published, there had been a total of 1.443 persons listed in the
7 annexes. What happens a mere year later on, after the beginning of
8 trial, and no less than 18 years after those persons allegedly went
9 missing or were killed, we have an additional 1.795 victims.
10 Your Honours, the fact remains that when we analysed this
11 documentation which runs into over 1.000 pages and is therefore quite
12 comprehensive. The database contains 80 persons whose date of death
13 falls outside of the scope of the time-period relevant to the indictment,
14 which is 1992. We don't even have a date of death in the case of 582
15 persons. As for a total of 862 persons, their whereabouts are stated as
16 "unknown." All I'm trying to do is give you some of the statistics that
17 we found upon inspection, and I'm using these pieces of information by
18 the way of an illustration. Believe me, there is more.
19 For this reason, from the Defence's point of view, this is a
20 complex problem. On the one hand, one is trying to add a total of nearly
21 2.000 new victims. On the other hand, the inadequacy of the information
22 contained in the database, combined, at least in our submissions, these
23 facts no doubt constitute a violation of the Tribunal's Statute,
24 specifically Articles 21 and 20, and stand in the way of the fair trial
25 that our clients are guaranteed by that very Statute.
1 May I, please, first consider the addition of 1.725 new victims.
2 The Prosecutor claims that they have the right to amplify the victim list
3 during the actual trial and make this addition of 1.795 new persons a
4 theory, which the Defence would like to challenge. For that purpose, we
5 would like to put forward the following arguments.
6 Your Honours, each new victim is a new allegation of crime. In
7 this sense, it is a material fact that must be stated in the indictment
8 in a timely manner with sufficient detail provided. There was no
9 preliminary announcement to the effect that the Prosecutor was intending
10 to amplify or add to the indictment by introducing new victims.
11 In an annex to the indictment, we find some remarks next to each
12 and every one of the incidents. In our view, these remarks do not as
13 such make clear the intention of the Prosecutor to add new victims in
14 this sense. If that is true, Your Honours, then we are at a loss as to
15 how to explain items 9.4 and 14.4 in the annex. The only way to explain
16 these or to interpret these is as some form of notice, an announcement by
17 the OTP that new victims would be identified in that portion. If indeed
18 the OTP get hold of such information at any stage during the proceedings.
19 This amplification or extension of the witness list was never
20 announced. We were not given notice of that. It is quite logical that
21 the Defence has not been able to mount any sort of investigation or
22 prepare itself until such time as a document was disclosed to us on the
23 22nd of July this year.
24 Hence, we believe that in this case the Prosecutor has not
25 proceeded with due diligence. They had this information long before the
1 information was disclosed to us. The simple reason being this database
2 is kept by the OTP. It is in their possession. Our learned friends have
3 access to it on a daily basis, access to the database itself, as well as
4 any information concerning potential new victims.
5 In our submission, amending an indictment in this way at such a
6 late stage in the proceedings leaves the Defence at a distinct
7 disadvantage, simply because we have no time to verify these allegations.
8 In order to do that, we would have to cease all other preparations for
9 this trial and come to grips with that. Any information available to us
10 right now cannot be verified. For example, by interviewing witnesses who
11 have already appeared.
12 I will briefly quote some jurisprudence before this Tribunal
13 regarding this problem. I'm trying to make sure no errors occur.
14 Therefore, I'll be quoting in English.
15 [In English] [Previous translation continues] ... Prosecutor
16 versus Krnojelac decision on preliminary motion on form of indictment --
17 amended indictment 11 February 2000
18 "It is abundantly clear that the content of the schedules form an
19 integral part of the indictment and that they have been added in that
20 form in order to avoid cluttering up the text of the indictment at the
21 places where they are so described. They must be treated as if they were
22 incorporated into the text at those places. The general allegations of
23 the individual and superior responsibilities of the accused made in
24 paragraphs of the indictment apply to those schedules in the same way as
25 they applied to any other part of the indictment."
1 And, additionally, Kvocka appeals decision, paragraph 67:
2 "In a recent case, the Appeals Chamber held that an indictment
3 must necessarily, in the absence of special order, consistent of one
4 document, that schedules to an indictment form an integral part of the
5 indictment, and that -- that they can contain essential material facts
6 omitted from the body of the indictment. In the case under appeal, the
7 Appeals Chamber sees no reason to depart from this approach. The events
8 contained in the schedules amount to material facts that have to be
9 proven before the accused can be held responsible for the crimes
10 contained in the indictment. The Trial Chamber, therefore, in this case,
11 correctly reached this conclusion."
12 [Interpretation] Your Honours, as for the Tribunal's
13 jurisprudence, I have here a total of 12 documents, 12 Judgements. I
14 have delivered this list to our friends from the OTP. I would not like
15 to take up more time than necessary and quote each and everything single
16 one; therefore, my proposal is to have this list distributed to officers
17 of the court so that they can familiarise themselves with our position on
18 that matter, regarding the Tribunal's jurisprudence.
19 As for the other aspects. The inadequacy of the database.
20 Your Honours, I will reflect upon that very briefly. Based on our
21 analysis, which you will realize is quite a comprehensive one, of such
22 documents as we received from the OTP, we have concluded that the
23 documentation is not appropriate to form a basis for a Court ruling. The
24 documentation manifests a number of shortcomings. The documents were not
25 verified nor indeed were they cross-referenced based on a -- different
2 I think the best way to illustrate this to the Trial Chamber
3 would to be use an example. I'm doing my best not violate any provisions
4 regarding secrecy and confidentiality. I will name specific instances
5 from the indictment, but the names and figures are purely fictitious.
6 We have a situation where one of the witnesses states that five
7 people were detained. His names are unknown to the witness. For
8 example, on 20th of July these people were taken away from Omarska. They
9 never returned. The suspicion is well-founded that these people are no
10 longer alive. Based on such information, an entry was made to the OTP's
11 database, hence we come across an allegation about five persons taken
12 away from Omarska on 20th of July, 1992, who are listed as missing.
13 Now we have another witness who says, On or around 20th of
14 July Muhamed Muhamedovic [phoen] and his two sons and two other persons
15 were taken out of Omarska and never returned. The names are fictitious.
16 Now, this is again entered into the database. And then we have
17 Muhamed Muhamedovic and his two sons, called Muhamedovic, and two unknown
18 persons, and they are listed as missing. We have a third witness, then,
19 who says, I saw in July, Muhamed, whose last name I don't know, being
20 taken out of Omarska with his four relatives and he never returned. Now,
21 this is again entered into the database as additional five missing
22 persons. And then we get another witness saying, On the 22nd of July, I
23 was taken out of my village in the municipality of Prijedor
24 then five or six other persons were brought in. They fired on us. I
25 survived, and the rest didn't.
1 Now, this bit of information is, again, entered into the
2 database, and based on all of this, one can get the impression that four
3 times five people, 20 in total, were killed; whereas, in the actual fact
4 we're talking about the same five people mentioned in the statement by
5 the first witness, the witness who didn't know those people. I think
6 that we now have a duplication of victims in various incidents. And for
7 the purposes of a criminal trial, this renders the database unusable.
8 The Prosecution will surely say that the number is irrelevant
9 here, and, as a matter of principle, I tend to agree. But what I would
10 like to illustrate is this: The database is unreliable, because these
11 data will probably lead to the conclusion that some of the persons never
12 really existed, the ones who are entered in the database, because names
13 are entered differently. They were not killed at all; they live abroad,
14 they moved out. We had cases of this nature in Srebrenica. And this has
15 engendered a great deal of controversy regarding the acceptance of
16 adjudicated facts before this Tribunal and has been widely reported in
17 the media.
18 We would like to give some sources that are used for this
19 database which lack objectivity, in our submission. Let me give you some
20 examples. One of the sources is the Sarajevo Household Survey. Then we
21 have the Muslims Against Genocide 2002 list. The third is The Book Of
22 Missing Persons, Prijedor. These are all sources that were used to
23 create this database, and in our submission, they lack objectivity. And
24 the same goes for some other sources that were used in the creation of
25 this database.
1 The Defence has -- is of a view that regardless of the complexity
2 of proceedings before this Tribunal, all the cases before it have been
3 and are criminal proceedings that deal with the commission of specific
4 crimes. Principles of criminal law, of evidence and procedure, are more
5 or less universally acknowledged and recognised in all jurisdictions
6 regardless of whether we are talking about the adversarial or
7 inquisitorial system or a combination of the two, such as we have here at
8 this Tribunal, and any diverging from these rules constitutes in its very
9 essence the negation of those rules and directly violates the principle
10 of fair trial which is universally guaranteed right of each and every
12 So, to sum up, the Defence opposes to the addition of persons who
13 are not listed in the schedules to the indictment for reasons that I
14 listed at the beginning of my submission; and, secondly, in light of the
15 unreliability of the database, the Defence has notified the Prosecution
16 that it would demand from the Prosecution to disclose to the Defence the
17 minimum necessary information that would enable the Defence to identify
18 each and every person listed in the schedules to the indictment, in a way
19 which will make it possible for the Defence to challenge the allegation
20 that the victims listed there are in fact the -- have -- were in fact the
21 victims of the crimes that the accused are charged with. And this is
22 consistent with the jurisprudence before this Tribunal.
23 The victim must be identified in such a way that the Defence is
24 able to challenge the allegation that these were indeed victims of a
25 crime that the accused is charged with. The Defence has already
1 submitted to the Prosecution the minimal information that it requires,
2 and once it has been received, we would like to present our position
3 regarding each and every victim in the schedules to the indictment, and I
4 would now like to acquaint you with the minimum information that we
6 One, first name last name. Second, father's name. Third,
7 personal identification number of the victim. Four, place and date of
8 the murder or disappearance. Place where the remains of the victim were
9 found. The forensic findings regarding the cause of death. And the
10 judicial decision to declare a missing person as deceased.
11 We understand that the Prosecution might perhaps not have all
12 this information for each and every victim. That's why we included some
13 other items, because item 6 might assist us with items 4 and 5, and so
15 Your Honours, this is my submission. Thank you very much for
16 your time.
17 JUDGE HALL: [Previous translation continues] ... Mr. Zecevic.
18 Yes, Mr. Pantelic.
19 MR. PANTELIC: Yes, Your Honour. Just very briefly, because
20 Zupljanin Defence is completely along the lines that my learned friend
21 Mr. Zecevic explained and we were participating in this mutual contacts
22 and negotiation with the OTP.
23 First of all, just a small correction to the transcript. On
24 page, 64 line 4, instead of Bijeljina it should Biljani as a site of
25 incident, to have a clear record.
1 Your Honours, adopting all points explained by Mr. Zecevic, I
2 would like to respectfully ask this Trial Chamber to direct Office of the
3 Prosecutor to amend the indictment or to reduce this list of alleged
4 victims. Why?
5 In light of -- I will make a short digression, which -- which is
6 related to my submission.
7 In light of the findings in Judgement of Simic et al., Samac
8 case, the -- the OTP theory of that case was that more than 17.000
9 non-Serbs were prosecuted -- persecuted, deported, expelled from the
10 municipality of Samac. At the end of the day, beyond a reasonable doubt,
11 only 16 persons out of 17.000 of non-Serbs were considered as a persons
12 persecuted or deported. This illustration, Your Honours, gives me a
13 right to respectively ask this Trial Chamber, in order to avoid this huge
14 basis, crime bases where our friends from the OTP are comfortably
15 swimming, and this ocean of concept of JCE category 3 is very warm and
16 comfortable sea for them and that -- that's why they are doing what they
17 are doing in this particular case. They are just adding and putting
18 without any particular minimum requirements by the criminal case just the
20 As illustration, in these Confidential Annexes, they even don't
21 have a name, they have just abbreviation, like LNU, et cetera, or FNU,
22 et cetera. I believe that, in quest for justice, this process might --
23 should go along the -- very precise rules and very precise categories.
24 And that's why I think that the OTP should precisely enumerate victims
25 with all necessary elements, and to, accordingly, amend the indictment or
1 present this particular piece of evidence or case in support of their
2 theory. Going into the thousands of names of alleged victims will
3 inevitably bring us to the situation where we would not able to know for
4 whom, how, when, and why certain criminal responsibility should arise.
5 That's why I -- I support all -- all what -- all points what Mr. Zecevic
6 outlined, and respectively ask this Trial Chamber to direct and to
7 instruct Office of the Prosecutor to narrow this base and to help even
8 Defence, to some extent, to -- to maybe find a solution with the Office
9 of the Prosecutor of certain, maybe, undisputed facts or data, so that
10 this trial could go smoothly -- as smoothly as possible.
11 Thank you for your attention, Your Honour.
12 JUDGE HALL: Yes, Ms. Korner.
13 MS. KORNER: Your Honour, there are two wholly separate
14 applications being made here. One of which is suitable for Your Honours'
15 ruling, which is the first, whether we should be allowed to add the
16 database containing the extra names; the second, the adequacy of the
17 information in the database and/or on which the Prosecution rely is a
18 matter of fact to be argued by evidence, if required.
19 Can I make this quite clear: We have, from the beginning, told
20 the Defence that we will at any stage supply them with the underlying
21 information relating to the deaths which are in the schedules and in the
22 database. Not -- not just recently but right from the beginning and,
23 indeed, the question of the exhumation evidence has been raised from the
24 pre-trial stage, as to how it was going to be dealt with. So if there is
25 any suggestion that we have deliberately withheld that information, then
1 we reject that. And as I'm sure Mr. Zecevic will agree, that has always
2 been on offer.
3 The second matter is this: The spreadsheets which the Defence
4 have been provided with set out each and every piece of evidence, which
5 is not just the Prijedor Book of the Dead or the -- whatever the other
6 two documents that were quoted, but other evidence that goes with it,
7 including statements, documents, and the like. And it's clear from the
8 spreadsheet what the Prosecution offer. And, of course, the Defence can
9 have those documents at any stage. It's a mammoth task but, of course,
10 they are entitled to and we would never think of refusing it.
11 Third on this point, which, as I say, is not a matter for
12 Your Honours to rule on today, the Defence are entitled to challenge each
13 and every name, the pieces of evidence which relate to those in the
14 schedules of the indictment or in the database by insisting that the
15 evidence is called. It's not being done in other case but that doesn't
16 mean to say it can't be done. It is their right and we'll do it if they
17 say so. It will take I don't know how many months to go -- to call every
18 witness to explain how the person disappeared or died or he saw him shot,
19 but we will do it. That is their right, subject to Your Honours' ruling
20 on this matter.
21 But as I say, that is not a matter on which Your Honours can
22 rule. The Defence are entitled to put us to strict proof, and if that's
23 what they do, then that is what we will do as well.
24 On the matter of whether or not the extra names which are
25 contained in the database should be admitted into evidence subject to the
1 question of -- of proving each and every one of them, Your Honours,
2 the -- the names, the averments in the schedules, whether those are
3 material averments in the indictment depends on the proximity of the
4 accused to the actual killings themselves. Tribunal jurisprudence has
5 said that over and over again. Effectively, forget about the Simic case,
6 which is a distinctly old case, but since the Brdjanin case onwards, when
7 Judge Hunt made it clear in his ruling on the Brdjanin indictment, if I
8 can just remind you of that and then remind Your Honours of the latest
9 case, which is not on Mr. Zecevic's list, and this is at paragraph 18 of
10 the objections -- the decision on the objections by Momir Talic, so
11 Mr. Zecevic is probably familiar with it, to the form of the amended
12 indictment, paragraph 18:
13 "A distinction is drawn in the Tribunal's jurisprudence between
14 the material facts upon which the Prosecution relies which must be
15 pleaded and the evidence by which those material facts will be proved,
16 which need not be pleaded. Whether a particular fact is a material one
17 which must be pleaded depends, in turn, upon the nature of the case which
18 the Prosecution seeks to make and of which the accused must be informed.
19 The materiality of such details as the identity of the victim, the place
20 and date of the events for which an accused is alleged to be responsible
21 and the description of the events themselves necessarily depends upon the
22 alleged proximity of that accused to those events."
23 "In a case --" paragraph 19 -- "based upon superior
24 responsibility --" which is what this case is -- "what is most material
25 is the relationship between the accused and the others who s did the acts
1 for which he is alleged to be responsible and the conduct of the accused
2 by which he may be found to have known or had reason to know that the
3 acts were about to be done or had been done by those others and to have
4 failed to take the necessary and reasonable measures to prevent such acts
5 or to punish. However so far as those acts of the other persons are
6 concerned although the Prosecution remains under an obligation to give
7 all the particulars which it is able to give, the relevant facts will
8 usually be stated with less precision and that is because the details of
9 those acts by whom and against whom they are done is often unknown and
10 because the acts themselves often cannot be greatly in issue."
11 Your Honours, in reality, that is the case here. The killings
12 which are listed in the schedules to the indictment are not in fact, as
13 far as we've been able to tell over the last year of trial, in issue.
14 The question of the perpetrators may be, but not the acts themselves. In
15 the recent decision in the Gotovina case, the original trial ruling on 9
16 October 2008 and the Appeals Chamber ruling in 2009 it was made
17 absolutely clear that -- if I can get to the -- the right page:
18 "The current Defence submissions --" this is paragraph 10 of the
19 decision of 9th of October 2008 -- "The current Defence submissions also
20 dealing with the lists on the indictment are derived from the supposition
21 that the identities of victims constitute material facts which need to be
22 pleaded in the indictment. The requirements of the pleading of the
23 identities of victims have either, however, already been litigated before
24 the Trial Chamber which, in its decision on Gotovina's preliminary
25 motions, found that the Prosecution did not need to identify each and
1 every victim in the indictment."
2 However, Your Honours, I'm sorry there is one other case I
3 think -- which I can't lay my hands on at the moment. What we've done
4 here is where we have been able to identify them, and Your Honours, I
5 think in the Popovic case that came up, which, at the moment, I can't lay
6 my hands on, we are obliged to give that information to the Prosecution
7 [sic]. And so what we've done here, Your Honours, it's not a question
8 that all of this information is new information. It's the analysis of
9 the information. Since the schedules were done, further analysis has
10 been done of the information that was available, as a result of which,
11 and as I say, it is all set out very clearly in the spreadsheet, we can
12 identify, we submit, further names from each of the scheduled killings.
13 This is not a new allegation. It is simply, if you like, giving further
14 detail, for which the Defence in one sense should be grateful, of the
15 names of those we say died at the -- at the various killings.
16 And Your Honours we submit that in the end result, it may not
17 make a huge difference. In fact, we very much doubt, given the nature of
18 this case, in the event of a conviction, how many people, whether it was
19 1.700 or 3.000, died but there is an importance from the point of view of
20 the record that those that the Prosecution can say are rightly listed as
21 victims of these crimes should be listed. And so we say the addition of
22 these names, leaving aside the proof, which is a totally separate matter,
23 is one that properly should be admitted by this Trial Chamber.
24 Your Honours, as Mr. Zecevic says, there are a number of
25 authorities. We can provided also the list of the extra authorities.
1 But the only issue, we say, that Your Honours can decide upon now is
2 whether or not the database should be admitted into evidence containing
3 those names.
4 JUDGE HALL: Thank you. Well, we have your arguments and
5 submissions on the record and we will give a ruling as soon as
6 circumstances permit.
7 Before we rise we do have a brief oral ruling to deliver.
8 Judge Delvoie.
9 JUDGE DELVOIE: Yes, indeed.
10 And it is an oral one because of the urgency of the decision in
11 relation to the Prosecution's motion and further findings for the
12 addition of the Mladic diaries to its Rule 65 ter list, the Chamber finds
13 that of all the 22 diaries submitted, only the eight diaries from 1992 in
14 their entirety and the five identified portions from 1993 but not the
15 three related diaries may be added to the exhibit list.
16 Further, the evidence of General Milovanovic will suffice in the
17 view of this Chamber to establish the prima facie authenticity of the
18 diaries, and therefore is added to the Prosecution's witness [sic] list
19 in the interest of justice.
20 Written reason of the decision will follow shortly.
21 MS. KORNER: [Microphone not activated] is he -- the -- the --
22 can I -- just a moment.
23 [Prosecution counsel confer]
24 MS. KORNER: I think we need -- can we redact, please, the last
25 part of Your Honours' ruling, from line -- page 78, line 15 to 18.
1 Can we go into private session.
2 JUDGE HALL: Yes, private session.
3 [Private session]
21 [Open session]
22 JUDGE DELVOIE: Just out of curiosity, Mrs. Korner, was your
23 motion filed confidentially?
24 MS. KORNER: I can't remember, is the answer.
25 I'm sorry, does that mean he is 92 bis? That's all I wanted to
1 know, his evidence. In other words, his statement can go in. Because
2 that's what we applied for.
3 JUDGE DELVOIE: No, Mrs. Korner, he will be viva voce. But you
4 will read that in the written -- in the written reasons.
5 MS. KORNER: Well, Your Honours, I would respectively ask that it
6 be 92 ter. I don't want to have take him through every single -- or one
7 of us take him through every single word he said in both the Stanisic,
8 Simatovic, and Popovic and repeat it all. He can be there for
9 cross-examination, and indeed I think the only objection to authenticity,
10 which I may is utterly surprising given that it is not contested by
11 either Karadzic or Perisic, however, is that the Defence can then
12 cross-examine him if they really wish to pursue this line. But we would
13 ask that it is 92 ter. Why on earth would we want to make him go through
14 chapter and verse for the third time?
15 [Trial Chamber confers]
16 JUDGE DELVOIE: Let's see if -- if -- if you will uphold this
17 application for 92 ter after having read the written reason, Ms. Korner.
18 MS. KORNER: Certainly, Your Honour.
19 JUDGE HALL: Thank you. And with that, we take the adjournment
20 to Monday, the 27th of September, in Courtroom III, at 9.00 a.m.
22 --- Whereupon the hearing adjourned at 1.49 p.m.
23 to be reconvened on Monday, the 27th day
24 of September, 2010, at 9.00 a.m.