Tribunal Criminal Tribunal for the Former Yugoslavia

Page 402

1 Monday, 10 March 2008

2 [Pre-Trial Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 9.10 a.m.

6 JUDGE ORIE: Good morning to everyone. Madam Registrar, would you

7 please call the case.

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

9 IT-06-90-PT, the Prosecutor versus Ante Gotovina, Ivan Cermak and Mladen

10 Markac.

11 JUDGE ORIE: Thank you Madam Registrar. We are here today for a

12 Pre-Trial Conference in the case of Mr. Gotovina, Mr Cermak, and

13 Mr. Markac. I would like to have the appearances. Prosecution first.

14 MR. TIEGER: Good morning, Mr. President, Your Honours. Alan

15 Tieger, Stefan Waespi, Katarina Gustafson, and case manager Donnica Henry

16 Frijlink for the OTP.

17 JUDGE ORIE: Thank you, Mr. Tieger. Then for Mr. Gotovina.

18 MR. KEHOE: Good morning, Your Honours. Gregory Kehoe, Luka

19 Misetic, Payam Akhavan and Ana Katalinic for General Gotovina.

20 JUDGE ORIE: Thank you, Mr. Kehoe. Then for Mr. --

21 MR. KAY: On behalf of Mr. Cermak, Steven Kay, Andrew Cayley, and

22 Tihomir Mak.

23 JUDGE ORIE: Thank you Mr. Kay, and then finally Mr. Markac.

24 MR. MIKULICIC: For General Markac, Goran Mikulicic, Tomislav

25 Kuzmanovic, and Vlado Rendulic.

Page 403

1 JUDGE ORIE: Thank you.

2 I'd first like to inform the parties that this morning Judge Kinis

3 was sworn in as a Judge. That means that the decision on the composition

4 of this Bench for this case has now become effective on from this morning,

5 and therefore I'm glad to introduce to you Judge Gwaunza to my left, Judge

6 Kinis to my right, and not a surprise, I'm Judge Orie for those who would

7 not know yet.

8 I think we have a relatively short agenda for this Pre-Trial

9 Conference. At a 65 ter Conference last week, a lot of matters were

10 raised. I also do understand that the parties have sat together and have

11 resolved a number of the issues. There are other issues which are not

12 ready yet to be determined.

13 I think the first thing I have to do is to give you a decision on

14 the Prosecution's motion to amend its witness list, a motion that was

15 filed on the 1st of February of this year. So I'll now proceed to deliver

16 that decision. It's a decision on the Prosecution's motion to amend its

17 witness list filed on the 1st of February, 2008.

18 On the 18th of February, 2008, the Gotovina Defence filed a

19 response requesting the Trial Chamber to deny the Prosecution leave

20 withdraw Steinar Hjertnes from the Prosecution's witness list and deny the

21 Prosecution leave to add Tor Munkelein in his place. The response further

22 requested that the Trial Chamber deny the Prosecution to leave to convert

23 all of its witnesses into potential 92 ter witnesses.

24 On the 25th of February, 2008, the Prosecution filed a request for

25 leave to reply and a reply to the Gotovina Defence's response, and the

Page 404

1 Trial Chamber granted leave to reply on the 28th of February and

2 informally communicated this to the parties.

3 The Trial Chamber grants the Prosecution's motion to amend its

4 witness list and adopts the number of witnesses the Prosecutor wishes to

5 call, and adopts the time available to the Prosecutor for presenting

6 evidence. The reasons for this decision will follow in writing at a later

7 stage.

8 And this concludes the decision on the Prosecution's motion to

9 amend its witness list.

10 Where the decision refers to the number of witnesses and the time

11 available for presenting evidence, I remind you that on the new list the

12 Prosecution asked for 209.5 hours to present 134 witnesses, out of which

13 it is proposed by the Prosecution that 112 will be in court to testify

14 viva voce or partly, most of them partly, under Rule 92 ter.

15 Of course decisions on the remaining 22 witnesses, whether the

16 Chamber allows these witnesses to testify under Rule 92 bis, still are to

17 be taken, and the same is true for the admission of witness statements

18 under Rule 92 quater, 92 quater dealing with witnesses that have deceased

19 or are not available.

20 It was announced last Thursday that the first witness would not

21 take two hours but only half an hour. The Chamber nevertheless thought it

22 wise not to immediately reduce the 209.5 hours to 208 hours. So

23 therefore, Mr. Tieger, it's still 209.5 hours.

24 As I said before, the reasons for this decision going in further

25 detail as far as the objections made by the parties are concerned will

Page 405

1 follow in writing.

2 Next item on my agenda is the exhibit list. The Chamber, although

3 I have not seen it yet but received a courtesy copy of a new proposed

4 exhibit list. I don't know whether its yet filed or not, Mr. Tieger, but

5 you'll understand that in the very short time we had available, not having

6 considered any responses by the Defence and also not having dealt with

7 translation issues, for example, that it's impossible for at this moment

8 to deliver any decision on that. At the same time we'll hear from the

9 Defence soon, and we'll try to resolve this matter as quickly as possible.

10 From what I understand, there's no specific issue any more about

11 Witness 136, who is the first witness to testify this week. I do

12 understand that as far as the exhibits are concerned that an agreement was

13 reached where the party requested -- where the bench requested the parties

14 to sit together that finally an agreement was reached on the exhibits to

15 be introduced through Witness 136.

16 Is there any matter related to one of the issues I raised that

17 needs attention at this moment?

18 MR. KEHOE: Yes, Your Honour. I must have missed that colloquy on

19 the exhibits for 136. I certainly know Mr. Misetic was part of that

20 discussion. I will gladly have that discussion with the Prosecution

21 before 136 takes the stand. I believe it's not until Thursday, but I was

22 not part of that discussion, nor did I know it was taking place. Maybe I

23 missed something during the 65 ter Conference. If that's the case I

24 apologise.

25 JUDGE ORIE: Yes. Mr. Kehoe, did you take any steps to get

Page 406

1 together with Mr. Tieger on exhibits issues.

2 MR. KEHOE: Your Honour, the exhibit issues go on daily. I mean I

3 got another swath of exhibits --

4 JUDGE ORIE: No I mean last Thursday.

5 MR. KEHOE: No, Your Honour I travelled on Friday to come here,

6 and I have not with all due respect. But with regard to exhibits from the

7 Defence side, and I speak just for General Gotovina, but I do believe that

8 my colleagues will echo this, that the exhibits that are continually being

9 given to us and information given --

10 JUDGE ORIE: Yes. I do understand --

11 MR. KEHOE: Yes.

12 JUDGE ORIE: -- but it was a specific invitation during the 65 ter

13 Conference to try to resolve matters of portions of exhibits to be

14 tendered instead of the whole so that it would not be necessary for the

15 Chamber to rule on partial inadmissibility. There was a clear invitation

16 for that, and it was also clear, I think, as a matter of fact, because it

17 was dealt with in relation with, I think, especially also the exhibits, I

18 remember the lists, et cetera, in relation to the first witness. So

19 therefore it surprises me a bit that you were not even aware. That means

20 not great communication between Defence counsel on this meeting.

21 MR. KEHOE: Your Honour, with all due respect as you know I had a

22 family obligation back in the United States. That's why I wasn't here. I

23 had an event with my daughter to take care of. However, Your Honour, I

24 will --

25 JUDGE ORIE: Let's be fair --

Page 407

1 MR. KEHOE: I will in fact -- I will in fact go through the

2 exhibits and talk to Mr. Tieger -- or Mr. Waespi specifically.


4 MR. KEHOE: But I stand up and I bring it to Your Honour's

5 attention because I didn't want to be incorporated into that until I have

6 a chance to go through this and talk to Mr. Waespi, which I'll gladly do

7 this afternoon.

8 JUDGE ORIE: Yes. I think furthermore there was an issue of

9 further argument on these kind of matters today if no resolution was

10 achieved, but let's be very practical. I take it that you will ask your

11 colleagues about the reasons or what made them agree with the Prosecution

12 and then you get together with Mr. Tieger, Mr. Waespi and see whether you

13 can join the agreement reached. If not, then of course we'll have to

14 decide on the exhibits either before the witness appears or when the

15 witness is in court and when these exhibits are tendered.

16 Mr. Kay.

17 MR. KAY: Yes, Your Honour. It's just one matter of clarification

18 on Witness 136. We have had our meeting with the Prosecution. Agreement

19 has been reached between the parties save for one matter, and we're

20 reflecting upon this severally and jointly today, but it's a matter that I

21 believe may well be resolved.

22 JUDGE ORIE: Yes. When I printed out yesterday evening the list

23 of exhibits on which there was agreement, I saw that one of them was still

24 in red rather than in black. I don't know whether that's the issue. Of

25 course I wondered what it meant.

Page 408

1 MR. KAY: We will be dealing with the matter. It just needs a

2 review and a thinking by both sides of their respective positions.

3 JUDGE ORIE: Yes. Then Mr. Kehoe can already join in that

4 exercise.

5 If there's any remaining issue there, the Chamber would like to be

6 informed in the usual way, that is, first of all through an e-mail message

7 to the legal officer in charge of this case, which is Mr. Nilsson

8 normally. I don't see him here at this moment.

9 Is there any other matter, because if we're talking about --

10 there's of course one other remaining issue in relation to Witness 136 but

11 not to be dealt with at this moment. Perhaps I could ask, first of all,

12 to go into private session.

13 [Private session]

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 409

1 (redacted)

2 (redacted)

3 (redacted)

4 [Open session]

5 THE REGISTRAR: Your Honours, we're back in open session.

6 JUDGE ORIE: Thank you, Madam Registrar.

7 Then the Chamber has received, as I'm informed because I've not

8 read it yet, an application for further provisional release for

9 Mr. Cermak. We'll read it. I do understand that the request is to grant

10 further provisional release from the end of this week until the 7th of

11 April, or at least a couple of days before that.

12 We'll consider the matter. Just for you to be aware that the

13 Chamber is aware of this motion pending.

14 MR. KAY: Thank you, Your Honour. There is a supplemental to that

15 motion that has been filed ex parte.

16 JUDGE ORIE: Yes. Then we'll look at that as well.

17 Then just to remind the parties the -- tomorrow, the 11th of March

18 at 9.00 in the morning, the Chamber will start hearing the Prosecution's

19 opening statement. Then on Wednesday, the 12th of March, 9.00 in the

20 morning, the Chamber will hear the Gotovina Defence opening statement.

21 The other two accused, Mr. Cermak and Mr. Markac, have refrained from an

22 opening statement, at least at this moment. Whether they'll make an

23 opening statement or not is still to be seen, but if so, it will be a

24 delayed opening statement.

25 And then on the 13th of March we'll hear the first evidence to be

Page 410

1 presented by the Prosecution.

2 These were all the matters I have on my agenda. Is there anything

3 one of the parties would like to raise, or is there anything the accused

4 think they should raise at this moment, whether or not closed or in open

5 session, for example, in respect of health issues, detention issues?

6 Perhaps I first ask you, Mr. Tieger. Anything to be raised?

7 MR. TIEGER: No, Your Honour. Thank you.

8 JUDGE ORIE: Mr. Kehoe?

9 MR. KEHOE: No, Your Honour. Thank you.

10 JUDGE ORIE: Mr. Kay?

11 MR. KAY: No, Your Honour.

12 JUDGE ORIE: Mr. Mikulicic?

13 MR. KUZMANOVIC: Your Honour, thank you. Tom Kuzmanovic here. I

14 do have a question on the issue of something we received via e-mail from

15 Mr. Tieger today, and I guess thought I'd bring it up in open court right

16 now. We received about a 15 or 16-page index of documentation that the

17 OTP is apparently in the process of receiving, most of which relates to

18 our client, and the question I have is is this going to be added to the

19 exhibit list that we already have? Is the exhibit list going to be

20 modified? When is there anything to be a decision on whether or not any

21 of this material is going to be used? We haven't seen it either yet, Your

22 Honour.

23 JUDGE ORIE: Yes. Mr. Tieger, I understand from Mr. Kuzmanovic

24 that you're in the process of receiving materials and that you are sending

25 lists or indexes of that material. Could you -- is this material that has

Page 411

1 come to your attention recently, or is it -- could you further clarify the

2 issue?

3 MR. TIEGER: Yes, Your Honour. Thank you. The answer is very

4 recently. Actually, on Friday, and the material has not even yet

5 physically arrived here in The Hague. I advised Mr. Kuzmanovic and

6 Mr. Mikulicic that we would process that as quickly as possible. I wanted

7 them to know immediately that we had received the material and it would be

8 arriving and to indicate to them what it was we provided them with an

9 index of that material. That's the extent to the information we have

10 about it as well, and we will proceed accordingly.

11 We've asked that it be couriered here so that we receive it as

12 quickly as possible and can process it expeditiously.

13 JUDGE ORIE: May I take it that it goes without saying that if you

14 have not even physically received or let alone read this material that the

15 issue of whether or not this should be added to the exhibit list is

16 premature to deal with at this moment.

17 MR. TIEGER: Of course.

18 JUDGE ORIE: Yes. Mr. Kuzmanovic, that is perhaps not a very

19 satisfactory answer, and of course later we'll -- questions will come up

20 as why is it that it only received -- it's received now, what kind of

21 material it is, but I'm afraid at this moment we have to grant some time

22 to Mr. Tieger to at least look at it.

23 MR. KUZMANOVIC: Understandably, Your Honour, and I guess my

24 question -- I just wanted to raise it. Let Your Honour know about it in

25 advance. Mr. Tieger did advise us of this material. He did send us an

Page 412

1 index. There is -- you know, that was all done very properly and we

2 appreciate it, and I just wanted to know if there was any indication at

3 all in the near future as to when we would find out about it in more

4 detail. Thank you.

5 MR. TIEGER: The only thing I'd add, Your Honour, is that the

6 index indicates that it's potentially documentation of considerable

7 relevance related to the accused and to close associates of the accused.

8 So it does need to be reviewed quickly and carefully, but certainly the

9 potential for a motion to add to the exhibit list is high.

10 JUDGE ORIE: Yes, yes. I do understand, but this all at this

11 moment speculative, and as it is also speculative on whether at this late

12 stage good cause to be shown at all whether now new material should be

13 added to the exhibit list, yes or no.

14 We'll just give you some time, Mr. Tieger, since you -- and the

15 Chamber urges you since it is very new material to do it as quickly as

16 possible.

17 Any other matter, Mr. Kuzmanovic or Mr. Mikulicic?

18 MR. KUZMANOVIC: No, Your Honour. Thank you.

19 JUDGE ORIE: Then I address you, Mr. Gotovina, Mr. Cermak, and

20 Mr. Markac. Is there anything you'd like to raise? And of course I

21 expect you to deal with the most -- the legal and the technical matters

22 through counsel, but if there's any personal matter you'd like to raise,

23 please do so.

24 Mr. Gotovina.

25 THE ACCUSED GOTOVINA: [Interpretation] Thank you, Your Honours.

Page 413

1 Thank you for your attention. I have no questions. I am ready to go, and

2 I leave the rest to my Defence team.

3 JUDGE ORIE: Yes. Thank you.

4 Mr. Cermak.

5 THE ACCUSED CERMAK: [Interpretation] Nothing to raise, Your

6 Honour. Thank you.

7 JUDGE ORIE: Thank you.

8 Mr. Markac.

9 THE ACCUSED MARKAC: [Interpretation] Your Honour, I have no

10 questions.

11 JUDGE ORIE: Thank you.

12 Since there's nothing on the agenda any more --

13 [Trial Chamber confers]

14 JUDGE ORIE: Since there's nothing on my agenda anymore and since

15 my colleagues have no matters to be raised at this moment, this concludes

16 the Pre-Trial Conference. We will adjourn until tomorrow morning; that is

17 the 11th of March. In this same courtroom, Madam Registrar. Same

18 courtroom, Courtroom III. We stand adjourned.

19 --- Whereupon the Pre-Trial Conference adjourned

20 at 9.32 a.m.