Tribunal Criminal Tribunal for the Former Yugoslavia

Page 16736

 1                           Thursday, 26 February 2009

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 9.17 a.m.

 5             JUDGE ORIE:  Good morning to everyone.

 6             Mr. Registrar, would you please call the case.

 7             THE REGISTRAR:  Good morning, Your Honours.  Good morning to

 8     everyone in the courtroom.  This is case number IT-06-90-T, The

 9     Prosecutor versus Ante Gotovina, et al.

10             JUDGE ORIE:  Thank you, Mr. Registrar.

11             Before we proceed, the Chamber would like to start with giving

12     its decision on a motion that was filed yesterday; that is, defendant

13     Mladen Markac, emergency motion for a stay of proceedings in relation to

14     Witness 82.  That motion is denied.

15             The matter at the basis of the request is, that matter, it being

16     whether the Chamber can receive the testimony of Witness 82, has been

17     litigated and decided.  Both oral and written decisions were received by

18     the Chamber.  The Chamber has thoroughly considered the matter and

19     decided that the reasons invoked by the Defence do not justify the

20     requested relief sought by the Markac Defence.  That is, to bar

21     Witness 82 from testifying.  The arguments that were put forward in the

22     emergency motion are mainly repetitious and do not justify a stay of

23     trial proceedings in respect of Witness 82.

24             Another still pending matter I would like to deal with is that

25     the Chamber still owes the parties a decision on Markac Defence request

Page 16737

 1     -- the Markac request for reconsideration or, in the alternative, a

 2     certification to appeal the Chamber's decision, denying the Markac

 3     Defence its request to be present and cross-examine Witness 82 at the

 4     place of the videolink.  This request dates from the 24th of February,

 5     2009, and asked the Chamber to reconsider or certify an appeal against

 6     the Chamber's decision of the 20th of February of this year.

 7             In that decision, which can be found on transcript pages 16.442,

 8     the Chamber denied the Markac Defence motion to be present at the

 9     videolink site in order to cross-examine Witness 82.  The Chamber has not

10     yet issued its reasons for that decision.

11             On the 25th of February, 2009, the Chamber decided to deny the

12     Markac Defence request for reconsideration or, in the alternative,

13     certification to appeal and informed the parties accordingly through an

14     informal communication.

15             A chamber has the inherent discretionary power to reconsider a

16     decision in exceptional circumstances, or exceptional cases, if the

17     requesting party satisfies the Chamber of the existence of a clear error

18     of reasoning in the impugned decision or if particular circumstances

19     exist justifying its reconsideration, in order to prevent an injustice.

20     New facts or arguments that arise after the issuance of the decision may

21     constitute circumstances justifying reconsideration.

22             As the reasons for the Chamber's decision have not yet been

23     issued, the Markac Defence has not been able to point to any clear error

24     of reasoning.  To a large extent the Markac Defence reiterates the same

25     arguments made to support its motion.  Beyond this, the Markac Defence

Page 16738

 1     quotes the guidelines on the modalities of video-conference testimonies

 2     set out in a decision of the 25th of June 1996 by the Tadic Trial Chamber

 3     and states that granting the Markac motion would be in accordance with

 4     those guidelines.  The Chamber notes that in this respect that the

 5     decision mentioned had not been relied upon by the Markac Defence; the

 6     Chamber did refer to it when informing the parties about the decision it

 7     had reached.  This can be found on transcript page 16.442.  Either way,

 8     this does not amount to a new fact or argument which arose after the

 9     Chamber issued its decision on the 20th of February 2009.  The Chamber

10     finds that the Markac Defence has not demonstrated that any particular

11     circumstances exist that would justify reconsideration in order to

12     prevent an injustice.

13             The Chamber therefore denies the Markac Defence request for

14     reconsideration.

15             In the alternative, the Markac Defence requests certification to

16     appeal the Chamber's decision of the 20th of February.  Rule 73(B) of the

17     Tribunal's Rules of Procedure and Evidence requires two cumulative

18     criteria to be satisfied to allow a Trial Chamber to grant a request for

19     certification to appeal; namely, first, that the decision involved an

20     issue that would significantly affect the fair and expeditious conduct of

21     the proceedings or the outcome of the trial; and, secondly that in the

22     opinion of a Trial Chamber, an immediate resolution by the

23     Appeals Chamber may materially advance the proceedings.

24             The Markac Defence argues that the Chamber's decision concerns

25     the accused's right to be tried in his presence and therefore involves an

Page 16739

 1     issue that would significantly affect the fair and expeditious conduct of

 2     the proceedings.  The Chamber considers that the decision does not

 3     involve the accused's right to be tried in his presence, nor does the

 4     decision involve the issue whether Witness 82 should be heard via

 5     video-conference link.  The Chamber's decision is limited to the

 6     modalities for the video-conference link for this witness.  The Chamber

 7     finds that the issue raised by the Defence, that is, the presence of

 8     counsel in the room where the witness gives his evidence, does not

 9     qualify as an issue that would significantly affect the fair and

10     expeditious conduct of the proceedings.

11             The Chamber further has considered that the Markac Defence has

12     not substantiated that an immediate resolution by the Appeals Chamber may

13     materially advance the proceedings.

14             Based on the forgoing, the Chamber denies the Markac request for

15     certification.

16             And this concludes the Chamber's decision.

17             A motion was pending requesting protective measures for

18     Witness 82.

19             MR. KUZMANOVIC:  Your Honour.

20             JUDGE ORIE:  Yes.

21             MR. KUZMANOVIC:  Before we go on our motion that we filed

22     yesterday also was a request for an examination of the witness.  So I'm

23     assuming that is denied as well?

24             JUDGE ORIE:  That's denied as well.

25             A request for protective measures was filed, protective measures

Page 16740

 1     sought were face distortion, voice distortion, and pseudonym.

 2             MR. HEDARALY:  Your Honour, in the motion it was only face

 3     distortion and pseudonym.  But I think having talked to the witness

 4     yesterday briefly, voice distortion may as well, if the measures are

 5     granted, be appropriate, in this case.

 6             JUDGE ORIE:  Mr. Hedaraly, I read from paragraph 10 of -- "for

 7     the reasons set out above, and in confidential Appendix A, the

 8     Prosecution requests the Trial Chamber to order the trial-related

 9     protective measures of the use of a pseudonym, face, and voice distortion

10     for Witness 82."

11             MR. HEDARALY:  Then I apologise, Mr. President.

12             JUDGE ORIE:  The motion is granted; reasons to follow.  This also

13     implies that we would need a break to have the protective measures in

14     place, which will take, Mr. Registrar, 20 minutes, if I'm well-informed.

15             One second.

16                           [Trial Chamber and registrar confer]

17             JUDGE ORIE:  If we take a break of half an hour now, then we

18     could do with one more break.  If we would take a shorter break at this

19     moment, then we would need two other breaks.

20             Therefore, we'll have a break, and we'll resume at 10.00.

21                           --- Recess taken at 9.31 a.m.

22                           --- On resuming at 10.08 a.m.

23             JUDGE ORIE:  Mr. Kuzmanovic, before the break, you asked me

24     whether the other request, that is a request to have Witness 82 medically

25     examined whether that was denied as well.  I said yes.  And did I that on

Page 16741

 1     the basis of my recollection of what we have considered in this context

 2     over the last -- well, let's say approximately the last week, and we, of

 3     course, thoroughly considered all aspects.

 4             I would like, however, to put on the record that the motion dated

 5     the 25th of February, the emergency motion for a stay of trial

 6     proceedings, and that was the motion upon which I delivered a -- the

 7     decision of the Chamber, does not ask for a medical examination, although

 8     it refers in the argument section in paragraph 7 to voir dire proceedings

 9     which is, of course, not exactly the same, but the relief sought here is

10     a stay of proceedings, not the Chamber to order a medical examination,

11     and I'm not going to start, and this is not an invitation to make such a

12     request, because, of course, the Chamber has considered the motions in

13     their context.  But I would like to have it clear on the record that they

14     were invited me to tell you whether the motion in every respect was

15     required, that the motion did not seek relief, in terms of a medical

16     examination of the witness.

17             MR. KUZMANOVIC:  Your Honour, I'm not going to get into it again.

18     We obviously respectfully disagree with the decision, but that is neither

19     here nor there.

20             The issue I want to bring up before this witness testifies is the

21     issue of whether or not this witness should be entirely in closed

22     session, and we've discussed this during the break, and given the fact

23     that the cross-examination of this witness is going to entail -- it is

24     going to be impossible for during cross-examination for someone not to

25     figure out who this witness might be.  Like we did with -- I think it was

Page 16742

 1     Witness -- I don't want it mention the name but the number --

 2             JUDGE ORIE:  Yes.  I do remember what you're referring to, yes.

 3             MR. KUZMANOVIC:  Who testified earlier it was a -- testified

 4     earlier in this case.  It just makes sense we think to put it entirely in

 5     closed session because if the direct is going to be in open session with

 6     the protective measures and then the cross is going to be entirely in

 7     closed, I think that is dramatically unfair.

 8             JUDGE ORIE:  Mr. Hedaraly.

 9             MR. HEDARALY:  We would have no objection going into closed

10     session.

11                           [Trial Chamber confers]

12                           [Trial Chamber and registrar confer]

13             MR. KUZMANOVIC:  Before you begin, the witness what I was

14     thinking of was Witness 86.

15             JUDGE ORIE:  Now it makes - although it is a very subtle

16     difference - it makes a difference whether closed session is ordered as a

17     protective measures, or whether we go into closed session during the

18     testimony of the witness.

19             May I take it then that the Prosecution and the Defence agree

20     that the protective measure of closed session would be granted.

21             The Chamber grants the now joint request.  I do understand that

22     you oppose the protective measures as such, but given the fact that the

23     earlier requested protective measures were granted as a follow-up, you

24     would agree, and with Mr. Hedaraly, Mr. Hedaraly agrees with you, that we

25     hear the testimony of this witness with closed session as the one

Page 16743

 1     protective measures because it would include all the others.

 2             MR. KUZMANOVIC:  Thank you, Your Honour.

 3             JUDGE ORIE:  The fact that this joint request now is granted does

 4     not mean that the Chamber agrees with the reasons given for it, that it

 5     would be unfair.  That is, therefore, not included in the decision.

 6             I add to this the following:  That we reorganised our morning

 7     session because we needed time for -- especially face and voice

 8     distortion, closed session doesn't take time at all, so if it would have

 9     been raised before the break, that would have been preferable.

10             We ...

11                           [Trial Chamber and registrar confer]

12             JUDGE ORIE:  Where I said that closed session covered all the

13     other protective measures, I should make an exception for pseudonym.  So

14     pseudonym and closed session.

15             We then move into closed session.

16                           [Closed session]

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 16744











11  Pages 16744-16814 redacted. Closed session.















Page 16815

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18                           [Open session]

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

20             JUDGE ORIE:  Thank you, Mr. Registrar.

21             The Chamber would like to hear from the Markac Defence whether

22     there's already a response for the application for protective measures in

23     relation to Witness 47.

24             MR. MIKULICIC:  We would not object to the protective measures,

25     Your Honour.

Page 16816

 1             JUDGE ORIE:  Thank you, Mr. Mikulicic.

 2             There is another relatively technical matter, Mr. Misetic, in

 3     relation to a witness statement by Witness 43, under Rule 92 quater.  In

 4     submissions you made on the 10th of June of last year, submissions that

 5     were entitled Gotovina's submission in relation to Trial Chamber's

 6     decision on the first batch of Rule 92 bis witnesses, you may remember

 7     that Witness 43 initially was a 92 bis witness but then became a

 8     92 quater witness.  But in this first submission, still under the 92 bis,

 9     you attached to that submission certain documents pertaining to

10     Witness 43, which were never tendered.

11             The Gotovina Defence is invited, in order to have a complete and

12     accurate evidentiary background, to tender the relevant appendices, I

13     think they were A, B, and C of that submission.

14             MR. MISETIC:  We'll do that, Mr. President.

15             JUDGE ORIE:  And I think I noted that of one of the attachments

16     only two pages were translated.  May I take it that was a summary of a

17     statement made, I think, in relation to a claim that some Official Note,

18     was it the intention to only present the two pages that were translated,

19     or was that a mistake?

20             MR. MISETIC:  To be perfectly honest, Mr. President, without the

21     filing in front of me I'm not familiar with the document to be able to

22     answer your question at the moment, but I will look into it and get you

23     an answer by tomorrow morning.

24             JUDGE ORIE:  Yes, well, if you would consider this, when

25     tendering the material, just to draw your attention to the fact that

Page 16817

 1     there were some pages untranslated.

 2             MR. MISETIC:  Yes, thank you.

 3             JUDGE ORIE:  Yes, there is -- I have to look at an e-mail.

 4             I have looked at the e-mail.

 5             The Chamber is struggling a bit at this moment with several

 6     motions to tender additional evidence.  They may be of quite a different

 7     character now and then.  We have heard already from the Gotovina Defence

 8     how unhappy they were with the -- with the spreadsheets, pages and pages

 9     summarizing documents, all kind of attachments.  The Chamber is still

10     analysing on what exactly is tendered and -- but still does not

11     understand why it came that late, even if it would be true, and we still

12     have to further analyse and consider that, but even if it would be true

13     that two documents on investigative steps by civilian authorities, when

14     part of that was raised, I think, on the 23rd of September of last year,

15     and we asked for the Defence to consider that, why, when tendering this,

16     it happens now, that is, a couple of days before the end of the

17     Prosecution's case, rather than after the Defence had had an opportunity

18     to that portion - I'm only talking about that portion, not about anything

19     else at this moment - why that was not tendered, well, let's say, after

20     two months the Defence had had an opportunity to look at them, rather

21     than at this moment.

22             The same is true for request to admit 11 killings related

23     documents into evidence and to add three documents to the Prosecution's

24     exhibit list, where normal time for response is 14 days.  Why is it that

25     three days before the end of the Prosecution case, suddenly these filings

Page 16818

 1     and rumours tell me that they might not be the last?  Why --

 2             Mr. Hedaraly.

 3             MR. HEDARALY:  Your Honour, I think in every case here given the

 4     complex and the size, I mean, we do our best to try to get our evidence

 5     in.  But we do realize that it is unfortunate also for us as well at the

 6     end to have to try to see what was and through witnesses and whatnot and

 7     re-evaluate our evidence, and although we appreciate the difficulty it

 8     causes, and that we have -- we have tried to introduce some of these

 9     matters earlier and -- but that's just -- the best we could do under the

10     circumstances based on the issues that we have to cover during the case.

11             I apologise if there is any specific motion or specific documents

12     that the Chamber is interested in, I can assist the Court in trying to

13     answer those specific questions.  But as a general matter, that is the

14     best can I do right now, Mr. President.

15             JUDGE ORIE:  Yes.  Well, just the explanation that you tried to

16     get them in earlier, but that it is now, only now, of course, is not a

17     very convincing argument at this moment.

18             If there's -- if there are any specific reasons why specific

19     documents should be tendered now, then, of course, the Chamber would like

20     to hear about that as soon as possible.  But I just put on the record at

21     this moment that the Chamber, preparing decisions on the matters, is

22     bothering and, of course, we have not heard in detail.  On one of them we

23     have heard just in brief observation by the Gotovina that this is just

24     too late.  If anything more could be said about it, of course, we'd like

25     to hear that as soon as possible.  Otherwise, we are handicapped in some

Page 16819

 1     ways by the late filing and by -- Mr. Registrar is also now reminding me

 2     that we should stop, and after I have received a similar message from

 3     Chambers staff.  That's what I then will do.

 4             Ms. Higgins, unfortunately, you have to wait until tomorrow, and

 5     even I can't give a guarantee.  Depends on how the schedule looks

 6     tomorrow whether sufficient time would be available, perhaps when we not

 7     only sit in the morning, but have some time in the afternoon as well.

 8             MS. HIGGINS:  Thank you.

 9             JUDGE ORIE:  We adjourn for the day, and we resume tomorrow

10     morning, 27th of February, 9.00 in the morning, same courtroom.

11                            --- Whereupon the hearing adjourned at 1.45 p.m.,

12                           to be reconvened on Friday, the 27th day of

13                           February, 2009, at 9.00 a.m.