1 Wednesday, 27 May 2009
2 [Pre-Defence Conference]
3 [Open session]
4 --- Upon commencing at 9.09 a.m.
5 JUDGE ORIE: Good morning to everyone in this courtroom and those
6 assisting us just outside the courtroom.
7 Mr. Registrar, would you please call the case.
8 THE REGISTRAR: Good morning, Your Honours. Good morning to
9 everyone in the courtroom. This is case number IT-06-90-T, the
10 Prosecutor versus Ante Gotovina et al.
11 JUDGE ORIE: Thank you, Mr. Registrar.
12 We are here today for the Pre-Defence Conference. I have quite a
13 few items on my agenda, and we'll deal them. At the end, if there is
14 anything to be added to the agenda, the parties can bring this to our
16 But, first of all, I established that Mr. Kuzmanovic is not
17 present. He has informed the Chamber about his health condition, and I
18 hope that everything goes well with him.
19 First item on the agenda is the -- is about the determinations
20 the Chamber will have to make in relation to number of witnesses and the
21 time available for the presentation of the Defence cases.
22 On the 4th of May, all three Defence teams have filed their
23 submissions, pursuant to Rule 65 ter (G). In their submissions, the
24 Defence specified the number of witnesses, the manner of testimony, and
25 the estimated time for examination-in-chief for each witness. The
1 submissions also included a summary of the facts on which the witnesses
2 are expected to testify. The Gotovina Defence sets out in its
3 submissions that it will call 67 witnesses and that a total time for
4 their examination-in-chief will be 125 and a half hours.
5 The Gotovina Defence adds, however, that there are several
6 witnesses on its witness list with whom it has never been in contact, and
7 that securing the attendance of a certain witness might eliminate the
8 need to call other witnesses expected to testify on the same topic. The
9 Gotovina Defence therefore anticipates that it will not have to call all
10 of the witnesses indicated and that it will use no more than 100 hours
11 for its examination-in-chief.
12 The Cermak Defence sets out that it will call 42 witnesses, and
13 that its examination-in-chief will take 49 and a half hours.
14 The Markac Defence submits that it will call 26 witnesses, and
15 that a total time for its examination-in-chief will be 97 and a half
17 Both the Cermak and Markac Defence indicate that they intend to
18 call all of their fact witnesses pursuant to Rule 92 ter. The Gotovina
19 Defence, however, indicates that it intends to call 19 witnesses as viva
20 voce witnesses without introducing any statement for these witnesses
21 pursuant to Rule 92 ter.
22 The Chamber encourages the Gotovina Defence, to the extent
23 possible, to convert its viva voce witnesses into Rule 92 ter witnesses.
24 Experience from this case and from others show that presenting
25 witnesses pursuant to Rule 92 ter enables the calling party to shorten
1 the time for examination-in-chief considerably. For example, the average
2 time for examination-in-chief of Prosecution witnesses called, pursuant
3 to Rule 92 ter in this case, was 1.7 hours. In this respect, the Chamber
4 notes that the average estimates for 92 ter witnesses to be called by the
5 Markac Defence is 3.2 hours. Having reviewed the summaries of the
6 expected testimonies of the Rule 92 ter witnesses to be called by the
7 Markac Defence, the Chamber considers that there's room for shortening
8 the examination-in-chief for many of these witnesses.
9 The Chamber considers that a similar approach can be adopted with
10 regard to expert witnesses through whom a party intends to tender an
11 expert report or statement. These documents often allow for a shorter
12 examination-in-chief which then only needs to address the central aspect
13 of the expert's evidence. In this respect, the Chamber considers that
14 the estimates of the Cermak and Markac Defence, with regard to the
15 examination-in-chief of expert witnesses, are relatively high and could
16 be shortened.
17 The Chamber further adds that while both the Gotovina and Cermak
18 Defence intend to present evidence extensively pursuant to Rule 92 bis,
19 the Markac Defence has included no such witnesses in its list. The
20 Chamber encourages the Markac Defence to consider and prepare for the
21 possibility to hear some of its Rule 92 ter witnesses to Rule 92 bis
22 witnesses. I should say to hear some of its present Rule 92 ter
23 witnesses as Rule 92 bis witnesses.
24 This could include such witnesses who are called to testify about
25 the structure and general functioning of the special police during and
1 after Operation Storm. A decision on whether the evidence of these
2 witnesses can be heard pursuant to Rule 92 bis is ultimately for the
3 Chamber to make after having heard the parties.
4 Moreover, having reviewed the summaries of the expected
5 testimonies for the witnesses included on the witness lists for all three
6 Defence teams, the Chamber considers that some time could be saved by
7 focussing the examination of witnesses on topics most relevant to the
8 issues of -- of the issues in the case. In addition, further time could
9 be saved by avoiding overlaps in the evidence to be elicited from
10 different witnesses.
11 The Chamber adds to this that it will, as has been its practice
12 throughout the case, carefully monitor how all parties are using their
13 time. Should any of the Defence teams at some later stage consider that
14 further time is needed to present its case, it should then make the
15 appropriate submissions to the Chamber.
16 In its decision of the 22nd of May of this year, the Chamber
17 dealt with the inclusion of Marko Rajcic on the Gotovina Defence's
18 witness list. As a result, on 26th May, the Gotovina Defence filed a
19 notice that it was removing this witness from its witness list. Further,
20 in its submission, the Gotovina Defence indicated that it will reduce the
21 number of its witnesses. Taking this into account, the Chamber accepts
22 the number of witnesses proposed by the Gotovina Defence.
23 The Chamber also accepts the number of witnesses proposed by the
24 Cermak and Markac Defence. After having carefully reviewed the Defence
25 submissions, pursuant to Rule 65 ter with regard to the time needed for
1 the presentation of their cases, the Chamber is inclined to grant
2 90 hours to the Gotovina Defence; 75 hours for the Markac Defence; and
3 45 hours to the Cermak Defence. Before making a final decision on that
4 matter, however, the Chamber invites the Defence to make any further
6 These submissions could be made at this moment, but I invite
7 parties to tell the Chamber whether such submissions could be made
8 immediately. If not, we'll find an arrangement when the Chamber will
9 hear these submissions.
10 MR. MISETIC: Mr. President, on behalf of the Gotovina Defence,
11 we accept the Chamber's decision and believe that the best way to proceed
12 is if for some reason we need to go above 90 hours, we will request
13 additional time from the Chamber, providing reasons why. So that's fine.
14 JUDGE ORIE: The 90 hours were not a decision, were an expression
15 of what we are inclined to do, but you certainly now encourage the
16 Chamber, as far as the Gotovina Defence is concerned --
17 MR. MISETIC: Thank you.
18 JUDGE ORIE: -- to proceed in this way.
19 Mr. Kay for the Cermak.
20 MR. KAY: Yes, Your Honour, on behalf of the Cermak Defence, we
21 estimated 49 and a half hours but I have to tell the Court that there are
22 three additional witnesses I have in mind to call, but I have not been
23 able to finalise either seeing them yet or move beyond preliminary
24 discussions with those witnesses.
25 They are important witnesses, and we believe necessary for the
1 Court to hear them, if we make the decision and they agree to be
2 witnesses in the case. In those circumstances, I was going to ask for a
3 slight increase of our hours and I knew that I would be able to take some
4 hours off some other witnesses, which is how I would have approached the
5 matter, and I would need, I believe, 52 hours, if I am to call the other
6 two witnesses -- other three witnesses, sorry.
7 In those circumstances, I don't want the Court to make a final
8 decision on our 45 hours at all, because it may be that the matter has to
9 be revisited. And I would prefer it if the Court kept to our estimate,
10 which is how we have been planning matters, and would be able to see,
11 once we were dealing with our evidence, quite how efficient we were going
12 to be in our presentations. We're not going to be covering a load of
13 ground that's already in the statement. The idea is that we cover
14 matters that may need some further explanation. And so we're slightly
15 concerned about this number of 45, because it may cause -- may way work
16 to our disadvantage if we do call the other three witnesses.
17 The reason why we haven't been able to finalise matters is simply
18 this. As the Court knows, I was brought into this case six months before
19 the trial started. A great deal of time spent in preparing for the
20 Prosecution case and informing myself on potential Defence evidence.
21 I've had to start the formalisation process of Defence evidence whilst
22 working on the Prosecution case, and in the time until today, we achieved
23 a lot of work but we needed a bit more time to deal with these three
24 further witnesses.
25 On another matter, we anticipate there will be more 92 bis
1 crime-base evidence relating to events between 1991 to 1995 in the
2 Krajina. That's not going to be a trouble to the Court, in terms of
3 court time, because they are going to be statements and transcripts from
4 other cases that have taken place in this Tribunal. But we believe we
5 have not had full disclosure on that issue of the previous crimes, and we
6 know that there is further evidence available that might be
7 confidentially filed with the Court and therefore requires a different
8 means of extracting it.
9 Your Honour, that's our position anyway.
10 JUDGE ORIE: Thank you, Mr. Kay.
11 You will understand that -- I just briefly say a few words about
12 your submissions.
13 You will understand that the inclination of the Chamber was based
14 on the data as submitted by the Defence.
15 MR. KAY: Yes.
16 JUDGE ORIE: And I think I earlier already expressed that -- I
17 said should any of the Defence teams at some later stage consider that
18 further time is needed to present its case, that it should then make the
19 appropriate submissions to the Chamber.
20 Now, therefore it is a matter -- not knowing who your three
21 additional witnesses would be, it will be a matter for the Chamber
22 whether to say at this moment - this is on the basis what we've heard
23 until now - is the number of hours granted or whether we already expand
24 the number of hours, but there, of course, we do not know who the
25 witnesses are, what the subject matter of their testimony will be.
1 And therefore one question for you: When do you think that you
2 could provide that information? That is, a proposal to or an application
3 for leave to add three witnesses to your witness list? Because it could
4 be very practical reasons that we start now on a certain number of hours.
5 Being aware of that an application, as you just indicated, is likely to
6 be made or whether we wait with our decision.
7 Could you give us any indication?
8 MR. KAY: Your Honour, I'm looking at the timetable of the
9 Gotovina Defence schedule and the idea is this. That when it's
10 appropriate and matter doesn't require my attendance here, that I remove
11 myself to another jurisdiction and deal with matters there. And so we've
12 just had a revised witness schedule served on us yesterday, and it seems
13 to me that within the next four weeks I will be in a better position to
14 deal with that matter.
15 And these -- by this I'm talking about the three live witnesses.
16 I think the Court will accept the 92 bis other trial transcript and
17 statement evidence is in a rather different category from the live
18 evidence of the witnesses that we're talking about at this stage.
19 May I say, though, I know I can present our case in 45 hours in
20 relation to the witnesses we've got. Of course, I can do that. But I --
21 I'm flying a flag that I don't want to be pinned in, if I do have this
22 further application in relation to one, two, or three more witnesses.
23 JUDGE ORIE: If any application will be made for one, two, or
24 three witnesses at a later stage, no one can say that it comes as a
1 MR. KAY: That's why I raise it. Thank you, Your Honour.
2 JUDGE ORIE: Mr. Mikulicic, would you like to make any
3 submissions in relation to the --
4 MR. MIKULICIC: Your Honour, on behalf of Markac Defence I could
5 only say that we are -- accept fully the position of the Honourable
6 Chamber as it regards to the number of hours, and we will surely try to
7 present our case within the time-limit given by the Chamber.
8 On the other side, we are in a quite similar position as the
9 Cermak Defence and we will simply -- may be in position just as it
10 regards to one or two witnesses to add or to switch the witnesses on our
11 list in due course. And as soon as we will be awaring of that situation
12 we will surely inform the Chamber on it by the proper motion.
13 JUDGE ORIE: It is common knowledge in this courtroom that
14 witness and exhibit lists as initially filed do not have an eternal life,
15 are not iron lists. At the same time, they are an important instrument
16 to guide us through the proceedings.
17 [Trial Chamber confers]
18 JUDGE ORIE: Mr. Kay and, to a lesser extent Mr. Mikulicic, the
19 Chamber has decided that it will at this moment set the number of hours
20 and the Chamber is fully aware that the lists, not to say that they are
21 of rubber but they are not of iron either. The Chamber is aware of that.
22 You have given also an estimate of what the Chamber most likely could
23 expect that is not doubling it, but one, two, or three witnesses. We're
24 talking about, in relation to the 45 hours, you indicated that you might
25 need 52 hours. So we know more or less within which range the Chamber
1 could expect further applications, and the Chamber, of course, will keep
2 this in the back of its mind but will set the number of hours in full
3 awareness of what you said at this moment.
4 That means, that having heard and considered the submissions by
5 the Defence, the Chamber grants 90 hours for the Gotovina Defence; 75
6 hours for the Markac Defence; and 45 hours for the Cermak Defence.
7 This decision by the Chamber now, of course, requires the parties
8 to reassess the number of hours for their witnesses. This should
9 finally, sooner or later, result in new consolidated lists with the
10 hours. The Chamber is not insisting on producing a lot of paper, all the
11 summaries again, et cetera, and then new numbers of hours attached to it.
12 Nevertheless, the Chamber would like to be informed in the most practical
13 way about the changes this will result in for the number of hours, for
14 the witnesses to be called soon.
15 [Defence counsel confer]
16 MR. MISETIC: Mr. President, we just wanted to alert the Chamber
17 that we intend to do that. But going back to the first point you made
18 with respect to 92 ters and that we have some viva voce witnesses on our
19 list. The reason for that is not because that's our choice but because
20 either there's a witness who's unwilling to give a statement or we're
21 dealing with Rule 70 providers. It is our intention, first of all, in
22 the next several weeks, through cooperation with the Rule 70 provider to
23 ultimately get witness statements from Rule 70 protected witnesses, which
24 will certainly then shorten the number of hours, but that will take some
25 time and so we will propose or put -- file our final our final list after
1 we get a positive or negative response from some of the Rule 70
3 In addition to that, as Mr. Kehoe reminds me, we will perhaps
4 eliminate some of the duplicative witnesses, which may result in an
5 increase in hours for one witness but that will be at the expense of
6 saving the hours that would have been used calling two or three other
7 witnesses on the same topic.
8 So overall, we believe we will be within the 90-hour, now,
9 decision of the Trial Chamber.
10 JUDGE ORIE: Yes. Of course, the Chamber is fully aware that --
11 and I think somewhere in the decision to the extent possible, which
12 expresses already the awareness by this Chamber of the limitations. If a
13 witness doesn't want to give a statement, 92 bis and 92 ter are not
14 available. That's clear. But, for example, moving from 92 ter to 92 bis
15 would, for example, require that an attestation is obtained and then, of
16 course, still whether the Prosecution will ask to cross-examine that
17 witness is still unknown, and the Chamber will have to decide that.
18 But it's all a matter of preparing and not closing options, which
19 might save time and are not jeopardising the fairness and the efficiency
20 of these proceedings.
21 So we're not asking you, at this moment, to spend a lot of time
22 on producing complete new lists, et cetera. I mean, for example,
23 Witness B plus two would already give the kind of information the Chamber
24 would like to receive well in advance of the witness testifying, and we
25 will keep, as always, a close record of the time spent.
1 Then I move to my next item.
2 The next item deals with the timing of opening statements and a
3 few matters to be put on the record, first of all.
4 The Chamber decided to hear the opening statements of the
5 Cermak and Markac Defence in the days immediately following the
6 Pre-Defence Conference. The parties were informed of this decision in an
7 e-mail sent by the Chamber's staff at 2.50 p.m. on the 15th of May, and I
8 will read this into the record.
9 The e-mail addressing the parties reads as follows:
10 "The Chamber requests the Cermak Defence and the Markac Defence
11 to make their opening statements on the 28th of May, and, if necessary,
12 on the 29th of May, 2009. This decision will be confirmed on the record,
13 either at the Pre-Defence Conference on the 27th of May, or in writing."
14 The Chamber wished to have immediately after the Pre-Defence
15 Conference an overview of all three Defence cases in order to better
16 monitor possible overlaps between the cases. The Chamber also found that
17 this would place it in a better position to ask questions from the Bench
18 during all these Defence cases, Defence cases which were jointly dealt
19 with within the indictment.
20 The Chamber considered and rejected a request for reconsideration
21 made by the Markac Defence and informed the parties thereof in an e-mail
22 sent by the Chamber's staff at 1.50 p.m. on the 19th of May.
23 That e-mail reads:
24 "The Chamber has considered the request of the Markac Defence for
25 reconsideration of the Chamber's decision regarding the timing of opening
1 statements and was not convinced by the arguments put forth. The request
2 is therefore denied. This will be confirmed on the record, either at the
3 Pre-Defence Conference on the 27th of May, or in writing. The Chamber
4 will therefore proceed to hear opening statements on the 28th and, if
5 necessary, the 29th of May.
6 "In this regard, and in order to consider the request of the
7 Gotovina Defence to call its first witnesses on the 2nd of June, 2009,
8 the Chamber wishes to hear from the Cermak and the Markac Defence by the
9 close of business today" -- that was the 19th of May, "how long time they
10 would like to use for their respective opening statements."
11 The Chamber found that a clear error of reasoning had not been
12 demonstrated and that reconsideration in this case was not necessary to
13 prevent an injustice.
14 In an e-mail sent by the Chamber's staff at 2.51 p.m. on the
15 19th of May, the Chamber granted a request by the Gotovina Defence to
16 call its first witness on the 2nd of June, 2009. In making this
17 decision, the Chamber considered that the time estimates provided by the
18 Cermak and Markac Defence for their opening statement did not leave much
19 time for hearing testimony on Friday, the 29th of May, and the Chamber
20 furthermore considered the fact that the 1st of June, 2009 is a
21 UN holiday.
22 I move on to my next agenda item, which is dealing with matters
23 of scheduling hearings.
24 An e-mail was sent to the parties on the 15th of May at
25 6.06 p.m.
1 "With regard to the Defence case during the Gotovina et al case,
2 in particular taking into account the number of hours requested by the
3 three Defence teams, the Chamber has considered to sit extended sessions.
4 This would mean the possibility of sitting six, rather than five sessions
5 per week. However, since the Presiding Judge is also the Presiding Judge
6 in the Stanisic and Simatovic case, which is scheduled to start in the
7 beginning of June, such extended sessions might not be possible. Rather,
8 the Chamber might need to reduce the number of sessions to four per week.
9 The Chamber would like to further discuss the scheduling of the Defence
10 case with the parties during the Pre-Defence Conference on the
11 27th of May, 2009.
12 "In the meantime, however, the Chamber asks the parties to plan
13 and prepare for normal court sessions" -- and I now add to that that's
14 five a week for a normal week, "for the first few weeks of the Defence
15 case. This means normal court sessions on the 27th till the 29th of May,
16 2nd until the 5th of June, 8 until the 12th of June, and 15th to the
17 19th of June."
18 The Chamber wished that it would already be able to finalise all
19 scheduling issues. Unfortunately, that is not possible. There are quite
20 a bit of uncertain factors which we have to take into account and there
21 are all kind of limitations.
22 Is there anything the parties would like to raise in this
23 respect? And before giving you an opportunity to do so, I already
24 announce that the Chamber has decided that it will not sit during the
25 normal recess, which starts at the -- the 27th of July, the
1 14th of August, and that the week immediately the recess, that we'll also
2 not sit. Chambers have an opportunity to have one week in addition, and
3 the Chamber has a clear preference for the week after the formal recess.
4 Which would mean that we will start -- that the week of the
5 17th of August until 21st of August would be a non-sitting week and that
6 we would restart on the 24th of August.
7 Any submissions by the parties in respect of the scheduling
9 MR. KEHOE: The one issue on behalf of the Gotovina Defence,
10 Mr. President, is the six sessions. Obviously that is difficult.
11 Mr. Misetic and I are the ones that are conducting the examinations of
12 these witnesses and to do a fulsome job requires us to be preparing those
13 matters as we move through the weeks. So we -- both of us will be moving
14 in and out, but if we do move six sessions, that would be very difficult
15 for us to accomplish. So, of course, we always accept the
16 Trial Chamber's orders and, of course, we will operate on the current
17 schedule, but if we do move to six it would pose some difficulties.
18 Thank you.
19 JUDGE ORIE: Yes. The Chamber is aware that it causes
20 difficulties. Of course, it causes difficulties for the Chamber as well.
21 That's -- that goes without saying. And, of course, there's a fair
22 expectation that if the other case, in which at least one if not more
23 Judges of this Chamber will be involved, proceeds as scheduled, that six
24 sessions would certainly not be a realistic expectation. But, as I said
25 before, we have in many respects -- we have uncertainties, which even
1 could lead occasionally to sitting less than we would wish to sit. It is
2 also other cases, Judges sitting on other cases involved and the
3 scheduling issue, courtrooms, Judges. It's all rather complex, and we're
4 working hard to achieve a result in which minimal time, if any, will be
6 Any further submissions by the Cermak and Markac Defence in this
8 Then I move on to the next item of my agenda, which is the issue
9 of disclosure where the Chamber, I think, encouraged the parties to reach
10 an agreement. The parties then asked for additional time until yesterday
11 evening, and the Chamber would like to be informed whether or not any
12 agreement was reached between the parties.
13 MR. MISETIC: Mr. President, I believe an agreement in principle
14 has been reached. We're just -- Mr. Russo sent me a proposal yesterday.
15 I tweaked it a little bit on the language and I'm just waiting to hear
16 his response. But I don't anticipate that we will have a problem
17 reaching agreement.
18 MR. RUSSO: Yes, Your Honour, we'll be getting back to
19 Mr. Misetic this afternoon, and I don't anticipate a problem.
20 JUDGE ORIE: Yes. Then the Chamber would like to be informed as
21 soon as possible about the content of the agreement. Because however it
22 important it may be that you agree upon certain matters, of course
23 finally the Chamber will have to agree with your proposal as well. So,
24 therefore, the Chamber expects a joint proposal by close of business
25 today? Yes. That's on the record.
1 The next item on my agenda is the timing of disclosure of expert
2 reports. I think that on the 16th of April, the parties were invited to
3 see whether it could agree on the -- on acceptable deadlines for the
4 submissions of expert reports which would still enable the Prosecution to
5 prepare and to keep in mind, in this respect, the time-limits set out in
6 Rule 94 bis under (B). The e-mail continued by saying:
7 "If no agreement is possible, please inform the Chamber as soon
8 as possible, copying all parties. The Chamber will then need to issue an
9 order with regard to time-limits for the disclosure of expert reports."
10 I don't think we have heard since then from the parties, which
11 would suggest that there is an agreement but there's no --
12 MR. KEHOE: Your Honour, I will fall on the sword first, with my
13 learned colleagues shortly behind.
14 This one slipped through the cracks, Judge, I'm sorry. And we
15 said we were going to talk about it and we have talked about things and
16 have met with each other, but I think we jointly plead guilty. We didn't
17 do it on this issue yet.
18 My apologies on behalf of my colleagues and myself and co-counsel
19 on this side of the well. I'd like to give a better answer to that, but
20 I don't have one.
21 JUDGE ORIE: Mr. Kehoe, I don't have to tell you that for a
22 Chamber to accept a guilty plea, it should verify whether the underlying
23 facts exist or not. So, at this moment, I don't think there is any time
24 for either denying or accepting the guilty plea, but the Chamber, of
25 course, would appreciate if this would be among the matters to be
1 discussed in the very near future, because it may well be an urgent
2 matter. And, of course, much depends also on when the experts are to be
3 called; at a late stage, at an early stage. The Chamber would also like
4 to be informed about this aspect, because sometimes it is an advantage to
5 have heard already expert evidence in order to better understand evidence
6 of a more factual nature, which is to be presented as well.
7 So, therefore, we invite the parties to agree on time of
8 disclosure but also to include in their conversations the timing in
9 relation to experts first, expert late, or this expert rather early
10 because of those and those witnesses of fact, or to include these
11 elements in the conversations, when -- we have not heard and this is now
12 confirmed that an agreement was not possible.
13 Now we'll put the question in a positive way: When will the
14 parties inform the Chamber whether there is an agreement?
15 MR. KEHOE: Your Honour, can we just get together maybe at the
16 break and see what kind of schedule we can come up with so that we can
17 schedule to schedule?
18 JUDGE ORIE: Yes. We will hear from you after the break.
19 Then I move on to the next item on the agenda.
20 On the 17th of April of this year, the Prosecution filed a motion
21 requesting the Chamber to issue an order to enforce what it claimed to be
22 the established procedure of disclosing lists of documents to be used
23 during examination of witnesses. After subsequent filings by both the
24 Defence and the Prosecution, the Chamber now understands that the parties
25 have come to an agreement on this issue. This agreement is set out in
1 the Prosecution's filing of the 8th of May, and the Gotovina Defence's
2 filing on the 11th of May, and the Chamber understands that the
3 Prosecution therefore now asks the Chamber for leave to withdraw its
4 motion of the 17th of April, 2009.
5 Mr. Russo.
6 MR. RUSSO: That's correct, Mr. President.
7 JUDGE ORIE: The Chamber hereby grants leave to withdraw the
8 motion of the 17th of April, 2009.
9 I move to the next item which deals with the first witness to be
10 called by the Gotovina Defence.
11 There is a still pending motion by the Gotovina Defence, the
12 Gotovina's motion pursuant to Rule 85 to hear the testimony of a witness
13 out of turn, which was filed on the 11th of March. It seems,
14 Mr. Misetic, that that motion could be declared moot or withdrawn.
15 MR. MISETIC: I think it's both, Mr. President. But we will move
16 to withdraw the motion.
17 JUDGE ORIE: If we declare it moot in an oral decision that would
18 save you --
19 MR. MISETIC: Yes, Mr. President.
20 JUDGE ORIE: -- some -- not much work at least.
21 MR. MISETIC: Yes.
22 JUDGE ORIE: The Gotovina's motion pursuant to Rule 85 to hear
23 the testimony of a witness out of turn, filed on the 11th of March, 2009,
24 is hereby declared moot.
25 The parties were informed in relation to this same witness that
1 the Gotovina Defence - and a request was received only from the
2 Gotovina Defence, not from any of the other Defence teams - that the
3 request for leave to reply was granted and that the Chamber had reserved
4 10 minutes to hear submissions.
5 Mr. Misetic.
6 MR. MISETIC: Just for clarification, Mr. President, do I have
7 10 minutes, or is it 5 and 5? Is it 10 for each side?
8 JUDGE ORIE: It was not without reason that we said the Chamber
9 reserved 10 minutes and I earlier said that there was no request from the
10 other Defence teams.
11 The Gotovina Defence has 10 minutes and whether we will hear
12 additional submissions from the other Defence teams, we'll hear from them
13 after that.
14 MR. MISETIC: Thank you, Mr. President.
15 With respect to the OTP's response to the 92 ter filing let me
16 state that, first as a preliminary matter, it is not our intention to
17 overwhelm the Chamber with paper and certainly if there is material that
18 is duplicative, it doesn't need to be in there if the Chamber doesn't
19 wish it to be in there. However, for the sake of completeness, we felt
20 it important to provide the complete statements that the witnesses
21 provided. However, reviewing the material, I have no problem, for
22 example, removing Mr. Milosevic's cross-examination of the witness, as I
23 do think it is duplicative of what the witness said both in his statement
24 and on direct examination of the Prosecution.
25 As a general matter, the Chamber is aware that -- aware through
1 the opening statement that we provided last year of the importance of the
2 issue to the Defence of the policies and behaviour of the leadership of
3 the so-called Republika Srpska Krajina from 1991 through 1995,
4 specifically as it relates to the issue of the reasons for the departure
5 of the Krajina Serbs.
6 Given that, we have already indicated to the Chamber in our
7 opening statement that it is the position of the Defence that it was the
8 ethnic policies of the Krajina Serb leadership, as well as a policy of
9 instilling fear into its own population for purposes of encouraging
10 ethnic separation and the continued existence of the RSK. We believe
11 that the testimony of this witness as to events from 1991 through 1995 in
12 the entire Krajina has relevant information for the Trial Chamber as it
13 relate to the issue of the policies -- I should add not only of the
14 Krajina Serb leadership but the leadership in Belgrade, and how all of
15 that connects directly to the issue of the reasons for the departure of
16 the Krajina Serbs.
17 I would state that this issue or the issue raised by the
18 Prosecution is that the issue -- the information provided by the witness
19 does not directly relate to the temporal and geographic scope of this
20 indictment. I don't believe that is the standard and I would note that
21 in the Prosecution's case in chief, the Chamber will recall a similar
22 issue arising. This is at transcript page 4889 beginning at line 22,
23 when Mr. Galbraith was testifying. The Defence objected to the
24 Prosecution's intent to lead evidence through Mr. Galbraith of
25 President Tudjman's policies in Bosnia. And we raised a similar
1 objection and at that time the Prosecution took the position that
2 Mr. Galbraith offered -- and this is at line 4 of page 4890:
3 "The witness offers extensive testimony about the position and
4 attitudes of the Croatian leadership towards the continued presence of
5 Serbs in the Krajina."
6 Mr. Tieger went on to state that President Tudjman views about
7 the need for ethnic homogeneity in a state and the resultant implications
8 for the actions that were taken in connection with this case was
9 relevant, and then he said:
10 "Evidence of President Tudjman's views and the views of other
11 Croatian leaders about such issues as ethnic homogeneity, population
12 transfers and the like is relevant to the Court and should be heard."
13 And then concluded by saying that it was clear that the Chamber
14 could -- was capable of distinguishing between matters that fell within
15 the temporal and geographic scope and matters that did not.
16 And the Court will recall that, on page 4897, it denied the
17 objection of the Defence and allowed Mr. Tieger to lead evidence on this
18 point with the caveat that background material should not become
19 foreground material.
20 Similarly, Mr. President, we submit that the -- because of the
21 importance of the issue of the policy of the Krajina Serb and Belgrade
22 leadership as it directly relates to the -- both, I guess, the reason for
23 the departure of Krajina Serbs as well as the need to launch Operation
24 Storm, the witness offers relevant information on those topics. We note
25 that this is the only witness on the Gotovina witness list who is
1 scheduled to appear to testify viva voce on these topics. The rest of
2 the witnesses on our list related to this specific background information
3 are being presented either pursuant to Rule 92 bis or 92 quater, and
4 therefore this background information while relevant is also going to not
5 be duplicated in -- through future witnesses, and we ask that the Chamber
6 keep that -- or consider that as well.
7 The witness's information, specifically now on the points that we
8 intend to show, are the connection that this witness will show of the RSK
9 to the Belgrade leadership. That issue is important to the Defence,
10 first of all, because the witness will confirm that General Gotovina --
11 it will provide information which will confirm that General Gotovina in
12 Operation Storm was not simply facing the ARSK but a common enemy with a
13 headquarters in Belgrade throughout the entire operation.
14 The second is the Prosecution objects to the witness's testimony
15 with respect to what happened to him and other Krajina Serbs when they
16 left the Krajina, and what happened to them when they got to Serbia and
17 the fact that they were transferred to Arkan's camps in Eastern Slavonia.
18 We believe that information is highly relevant because the Prosecution
19 has raised the issue in its direct of Croatia's reluctance or alleged
20 reluctance for a mass return of Krajina Serbs. We believe the fact that
21 Krajina Serb males aged 18 to 65, after the departure from Croatia, were
22 mobilised in various military units for the purposes of continuing to
23 wage armed conflict against the Republic of Croatia is relevant material
24 and needs to be heard by the Chamber.
25 The witness will describe from 1991 through 1995, throughout the
1 entire Krajina, a policy of the Belgrade and Krajina Serb leadership of
2 creating a "psychosis of fear among Serb civilians" which is intended by
3 the Defence to be a direct rebuttal of paragraph 28 of the joinder
5 We note that paragraph 12 of the joinder indictment states that
6 the common purpose of the JCE was not that it was the permanent removal
7 of the Serb population from the southern portion of the Krajina but,
8 rather, from the entire Krajina, and therefore to the extent that the
9 Prosecution allegations that the purpose of the JCE was the removal of
10 the entire Krajina Serb population, this witness's evidence is certainly
11 relevant, despite the fact that is he in Sector North, about the events
12 that took place in the entire Krajina from the Krajina Serb side, as a
13 direct rebuttal to paragraph 12 of the joinder indictment.
14 And finally, I would note that in paragraph -- page 3 of the
15 Trial Chamber's order of the 21st of February, 2007, where the
16 Trial Chamber invited the Prosecution to shorten its indictment both
17 temporally and geographically, there's a portion that says that the
18 Prosecution was still entitled to lead evidence of a pattern of events
19 encompassing the charged municipalities, and we submit that this
20 witness's testimony certainly provides information concerning the pattern
21 of events that led us to Operation Storm and provides information to the
22 Chamber about what transpired.
23 So that extent, Mr. President, given that this is the only
24 witness that will be called viva voce witness called by the Defence, we
25 believe that the submission should be permitted through Rule 92 ter, and
1 in particular, so that we don't have to lead all of this evidence orally.
2 We, in particular, believe it should be led -- or should allowed in
3 written form, and as I indicated, if the Chamber wishes we can remove
4 Mr. Milosevic's cross-examination, which would save the Chamber having to
5 read many of the extra pages that were included in the 92 ter.
6 Thank you.
7 JUDGE ORIE: Thank you, Mr. Misetic.
8 Cermak and Markac Defence, any need to make submissions on the
10 MR. KAY: No, Your Honour.
11 MR. MIKULICIC: No, Your Honour.
12 JUDGE ORIE: Thank you, Mr. Kay and Mr. Mikulicic.
13 Prosecution, Mr. Hedaraly, may I already draw your attention to
14 that. It seems that there may be two matters involved. The one is
15 relevance and probative value; that's the matter raised by the parties.
16 The other matter is the efficiency. What details do we need in order to
17 address a matter of recent history?
18 I just give a example which is not related to this witness. If a
19 witness presented under Rule 92 quater is deceased, then, of course, it
20 should be established that he is deceased. Whether we need full details,
21 many, many, many pages on all those circumstances, and whether the
22 parties could not have agreed on the death, and I would say in ten lines
23 the circumstances under which that person died instead of 30 pages. I'm
24 not saying irrelevance but there is disproportion between the number of
25 pages spent on the matter and the information it provides to the Chamber.
1 I just want to draw your attention to the fact that apart from
2 the issues raised, whether its relevant, whether its probative or not,
3 that one could also consider either to agree on certain matters or to be
4 very selective. For example, the example I just gave. Again, not
5 related to this witness. That if you want to present it not as a agreed
6 facts or a description in ten lines, one could have limited itself, for
7 example, to the conclusions of a report in relation to the death of a
9 I'm raising this matter because both aspects deserve attention.
10 Mr. Hedaraly.
11 MR. HEDARALY: Thank you very much, sir. Mr. President, you have
12 foreshadowed in part what we wanted to address, which is some of the
13 points that Mr. Misetic raised regarding relevance we don't object to.
14 Some of the examples he gave today are not portions of the statement to
15 which we have objected.
16 What we have was not only a relevance objection but was a
17 practical matter of an almost 400-page transcript and a 40-page statement
18 which is more of a background issue and, based on the Chamber's guidance,
19 should not be made the foreground, and although it could arguably be
20 relevant at times, the fact that it would take hours to review for the
21 Chamber and it may not really assist the Chamber, so although relevant
22 some portions do not raise -- of a relevance significant enough to have
23 sufficient probative value under 89(C). For example, the activities of
24 the witness as a member of the Serbian Intelligence Service between 1968
25 and 1991, it is still not clear why that is relevant. And similarly,
1 Mr. Misetic is talking about between 1991 and 1995.
2 Really the issue is, Your Honour, that it is on the Defence, who
3 is the party tendering the statement, to show why it is relevant. They
4 should select the portions that are relevant to avoid just dumping the
5 Chamber and the Prosecution with the 400-page transcript, saying it's all
6 relevant, it's all about the -- the attitude of the -- of Belgrade and
7 what happened and it's relevant to our opening statement.
8 We're not saying the issues raised in it are not relevant, but
9 there is an disproportionality of the relevance of that information and
10 what is presented. There are details about what happened in 1992, who
11 the witness met, to show all these details of control, which is not
12 really, we believe, the main focus of this case. So if there is a
13 selection made by Defence and they present to us, this is why it is
14 relevant, this is what we want, then we will obviously look at it. And
15 we have said we don't object to many portions of the statement, so it is
16 just a matter of a practical issue, and I think it is on the Defence to
17 show why it is relevant and which portions it wants to tender, rather
18 than dump the whole thing and, you know, say we want to submit the
19 400 pages.
20 MR. MISETIC: Mr. President.
21 JUDGE ORIE: Yes, Mr. Misetic, perhaps I should inform you that
22 the Prosecution is an experienced expert in this field. I remember from
23 the previous cases where a thousand pages were submitted under
24 Rule 92 bis or 92 ter that upon encouraging the Prosecution to look at
25 what really assisted the Chamber there were even able to reduce it to
1 10 percent of that size.
2 So, therefore, I take it that Mr. Hedaraly is speaking from a
3 large experience in the OTP dealing with these kind of matters.
5 MR. MISETIC: Thank you, Mr. President.
6 As I indicated, I'm trying, for example, to cut Mr. Milosevic's
7 cross-examination. I don't have a problem with that. But I am confused
8 by Mr. Hedaraly's presentation because on the hand it's relevant and he
9 doesn't deny it's relevant; but on the other hand, he calls it a dumping
10 on the Chamber.
11 The material with respect to his -- his work from 1968 to 1991 is
12 simply a background information. I note that the Prosecution itself has
13 tendered that portion into evidence in a Chamber in which you are also
14 presiding and I don't think that the Prosecution deleted it from the
15 92 ter presentation and filing in that case, in the Jovica Stanisic case.
16 So I don't understand why in this case it's duplicative, it has nothing
17 to do with -- it's not relevant, but what the witness was doing in 1968
18 apparently is relevant to the Prosecution in the Jovica Stanisic trial.
19 It's simply background describing what the witness did. It's as
20 if in other 92 ter statements we say, you know, the witness's education
21 falls outside the geographic and temporal scope of the indictment. I
22 understand that but ...
23 JUDGE ORIE: Yes. Wouldn't there be a way, for example, if I get
24 a long description of what someone did in five years which is not
25 directly -- but it's interesting as background, it's the same as with
1 historical evidence. Would we have to know all the details of a battle
2 which took place five centuries ago, or can we just agree on that a
3 battle took place in a certain context? Where a total description of the
4 battle would take us ten pages whereas a short description would perhaps
5 take us ten lines. I'm just trying to find out whether you could not
6 summarise that.
7 MR. MISETIC: Let me give you my answer to that.
8 And let me take a step back and explain because it requires me
9 now to go into details.
10 The witness's background is important because it establishes that
11 he worked for Yugoslav and later Serbian intelligence. That fact is
12 going to be relevant later in the trial because we intend to show
13 Jovica Stanisic's connection to the events that took place on the 4th and
14 5th of August, in Knin, 1995.
15 This witness has a relationship both with Jovica Stanisic and
16 Frenki Simatovic. We have an intercepted phone conversation which was
17 P450 which, unfortunately, the Prosecution reduced and now that
18 intercepted conversation has been removed. But this witness's relation
19 to Frenki Simatovic and Jovica Stanisic is going to be relevant because
20 the Prosecution has put into dispute the shelling of Knin on the 5th of
21 August, in the morning. We intend to show a conversation and control by
22 Jovica Stanisic, Frenki Simatovic, of Mile Mrksic in Knin on the evening
23 of the 4th, and the fact that it was agreed that units under Frenki
24 Simatovic's control were to be in Knin on the morning of the 5th.
25 This witness's background information and the fact that he
1 understands the inner workings of what really transpired and who really
2 had control is important to us. I will note that -- I will note that I
3 have, already two weeks ago, asked the Prosecution if they would
4 stipulate as agreed facts the OTP's pre-trial brief in the
5 Jovica Stanisic trial as agreed facts so we don't have to cover a lot of
6 ground, and I have sent a reminder yesterday. So I still don't have an
7 answer in -- to my proposal that they simply stipulate to what they have
8 alleged in the Stanisic trial.
9 So to answer your question about whether I'm trying to reach
10 common ground, I am. I think that I have said that the entire pre-trial
11 brief in the Stanisic case is something that we agree on. So, we are
12 trying to shorten this up but we're awaiting for a response from the
14 MR. HEDARALY: First of all, we were waiting to get some
15 information of why all these facts were relevant, and this is what we're
16 asking Mr. Misetic to do. He has the burden as tendering party for the
17 statement to show why it's relevant. All we say is, if we can know why
18 these are relevant, then we agree. If they're just submitted as 92 ter
19 statement sometimes, frankly, the relevance is not that clear by looking
20 at that statement or looking at that transcript for that particular
22 Regarding the Stanisic pre-trial brief, one of the things that I
23 would tell Mr. Misetic is that there is a later version that was filed
24 and the version that he proposed was not the current one. We are
25 reviewing it. We wanted to see what we can achieve here but there was
1 never anything about let's limit this testimony if we agree to the -- to
2 the pre-trial brief in the Stanisic case.
3 I mean, I don't want to spend half an hour arguing about if
4 something is relevant or not, if it's better that it comes in. But, at
5 the same time, I mean, we can't just have everything and have a good
6 faith proffer that this is all relevant to something and put it in. But
7 if we have -- if we know what portions are relevant for which topics and
8 it's sort of, like, presented to us in that way, then we can -- we can
9 agree. We can look at these portions, those 400 pages. These 30 pages
10 are for this topic and that's why it's important. These 20 pages deal
11 with this topic, that's why it's relevant. Then we can examine it and we
12 can agree. And as we have said in our -- even in our filing, a lot of
13 this stuff, we agree that it is relevant.
14 That's all we have, Your Honour.
15 MR. MISETIC: Mr. President, one --
16 JUDGE ORIE: One word, Mr. Misetic.
17 MR. MISETIC: I will note that Mr. Hedaraly nor anyone from OTP
18 has ever contacted me requesting any further clarification on why
19 Mr. Lazarevic's witness statement is relevant. The first I heard of any
20 dispute about the relevance was after they filed their filing. At no
21 time did he contact me between the filing of our 92 ter and the filing of
22 his response.
23 Second --
24 MR. HEDARALY: The burden is clear. It's on the tendering party
25 to show why it's relevant.
1 MR. MISETIC: Mr. President, one other fact. Mr. Hedaraly has
2 now raised some -- some new fact about some new or revised statement.
3 The Chamber will note, as you have noted, that we have agreement with the
4 Prosecution that was -- that was reached with respect to the disclosure
5 of exhibit lists. The flip side of that agreement was that they were to,
6 under 66(B), provide state -- all statements of our witnesses.
7 JUDGE ORIE: I -- were you referring to a revised statement or to
8 a revised pre-trial brief, Mr. Hedaraly. I think that's --
9 MR. HEDARALY: I think I said pre-trial brief. If I have
10 misspoke then it is my mistake.
11 JUDGE ORIE: No. That's what I heard, as a matter of fact. I
12 have to look whether that appears on the transcript.
13 MR. MISETIC: Well, if it's the pre-trial brief, Mr. President, I
14 took the one that is the latest public pre-trial brief.
15 JUDGE ORIE: Yes, that's fine. But, first of all, there's no
16 disclosure issue of a new statement but, rather --
17 MR. MISETIC: That's fine.
18 JUDGE ORIE: So that has been settled.
19 It seems that both the Gotovina Defence and the OTP are craving
20 for further communications of such a level that it -- in their clear wish
21 to assist the Chamber to do it the best way possible, and, of course, the
22 burden is on the party who presents the evidence. At the same time,
23 what's the best way to revolve the matter. Of course, the Chamber could
24 give a ruling and then we know exactly one of the parties could be
25 disappointed. Could be that both are very happy at the end. But, of
1 course, the Chamber always prefers to see whether the parties can agree
2 on certain matters so that they are both of the opinion that this is the
3 best way to assist the Chamber.
4 And in that respect, also, Mr. Misetic, some matters you raised
5 as relevant matters, the involvement of the witness in certain
6 activities, there, again, the issue is what should we know? Should we
7 know all the details of his involvement in all missions, et cetera; or
8 could we just -- or could the parties just say, Well, I find important
9 that from that year to that year that the witness was performing his
10 duties under the supervision or under the orders of Mr. A, B, and C, and
11 that he went on mission to that, that, and that place, and that, finally,
12 on those missions, he injured five persons as instructed of that
13 ethnicity or not.
14 I mean, what I'm trying to do is to see whether there is not a
15 practical solution for many of what apparently seems to keep you apart.
16 And, of course, if -- if you don't reach an agreement, the Chamber will
17 decide on the matter. But both parties are taking a risk and -- because
18 one of the things the Chamber cannot do is to look at the positions taken
19 by both parties and then to find a kind of a -- of a middle position. I
20 mean, we cannot negotiate. We have to say, yes, this is of sufficient
21 relevance, sufficient probative value, or we have to say no, and that can
22 be the whole of it, it can be portions of it. But of course, sometimes
23 it's preferable that the Chamber gets in a summary form information which
24 may in all its details not be of that relevance but, nevertheless,
25 interesting enough for the Chamber to hear, and in the most efficient
2 Is it of any use to invite the parties again to continue its
3 disturbed communication and I would give as a guidance that I would avoid
4 using the word "burden," not to say forget about it, but if you don't use
5 that word, then it certainly would not trigger any strong opposition.
6 MR. HEDARALY: Mr. President --
7 JUDGE ORIE: Yes.
8 MR. HEDARALY: -- I will renew the offer we have made. If
9 Mr. Misetic wants to present to us either portions, summaries of portions
10 to make the matter more efficient, I said it before, I will say it again,
11 we will look at them and I think -- I think we can work reasonably. It
12 is really a matter of volume, so if Mr. Misetic says, you know, there are
13 100 pages of transcript, these are the summaries of 20 lines, if we look
14 at it, we agree that that summarises that evidence, we have no problem
15 with looking at it and then deciding if we agree that it's relevant or
16 not. Then if it's not, maybe we still leave it in as background
17 information, but I don't want -- I will not use the word "burden," but at
18 the same time, I mean, we have to know why it is being tendered. So if
19 Mr. Misetic presents to us portions, summaries of portions and saying why
20 it is relevant, we will go through it and we will give an answer to
21 Mr. Misetic. And then if we can't reach agreement, then we will come to
22 the Chamber.
23 JUDGE ORIE: Yes.
24 MR. MISETIC: Mr. President --
25 JUDGE ORIE: Yes, Mr. Misetic. At a certain moment we have to --
1 I mean --
2 MR. MISETIC: Yes, but I need to clarify the record.
3 JUDGE ORIE: Yes.
4 MR. MISETIC: There has been no offer and I need correct
5 Mr. Hedaraly on that. This is the first time that he has made this
6 presentation. He and I haven't spoken, I don't believe, in two months or
7 had any communication whatsoever since the 98 bis ruling so --
8 JUDGE ORIE: I take it will be a pleasure for you to meet again.
9 MR. MISETIC: I'm thrilled, Mr. President. It's always
11 JUDGE ORIE: You know, you just don't know when -- I don't know
12 when, but if you make an appointment, then you would know where and when.
13 It's an urgent matter. When do you think that --
14 MR. MISETIC: Well, let me just make my point for the record,
15 Mr. President.
16 I have no problem if he has -- and they have outlined specific
17 portions and I will be glad to file a response and explain to him why the
18 portions that he claims are irrelevant are in fact relevant.
19 However, there's two things that have to you keep in mind. One
20 is that I cannot anticipate everything that is going to be relevant,
21 given that I don't know what their position is in cross-examination. So
22 if he is going to stipulate or concede that the witness in fact was an
23 experienced member of the Yugoslav counter-intelligence from 1968 to 1992
24 and there is no dispute about what his activities were, that's fine.
25 On the other hand, if I remove that and then if he's going to
1 come up in cross-examination and say this witness - I'm being
2 hypothetical now - this witness doesn't have specific experience in a
3 particular field, et cetera, obviously that's something we have to
5 I'd be happy to discuss it with him, Mr. President, but as I
6 said, I think I made the same point to Mr. Russo the other day. It is
7 our intention, Mr. President, to avoid getting the Chamber involved in
8 matters that can be revolved privately amongst the parties. To that
9 extent, now that I've heard Mr. Hedaraly wants to sit down and talk about
10 it, I certainly have no problem continuing along the path that I
11 indicated to Mr. Russo was the path that we prefer.
12 JUDGE ORIE: Mr. Hedaraly, that -- it seems that more could have
13 been achieved in the communication, and I leave it as neutral as that,
14 than has been achieved until now.
15 I'm addressing both parties. Is it of any use to give you, and
16 if so, how much time, to see whether the achievement could be improved?
17 MR. HEDARALY: Your Honour, we can talk but I think it would be
18 more fruitful if we had first something from the Defence as to how what
19 -- why portions or how it can be summarised rather than just sit down and
20 talk. I'm happy, if we have that, to meet as quickly as possible and
21 hopefully we can get something from them and then meet up and get a
22 response to the Chamber by Friday.
23 JUDGE ORIE: This is typical lawyers' approach. I'm quite
24 willing to look at what you send to me. It is of no use to sit together.
25 Sometimes it is of use to sit together briefly, 15 minutes, half an hour,
1 then to more or less sense the temperature of the water, to say, Here
2 seems to be a major problem; here the problems seem to be minor, then to
3 agree on who will prepare what, and then in the next meeting see whether
4 any further results can be achieved.
5 This is -- I'm not a mediator but this is the kind of approach
6 which might work better than to say, We are waiting for your first
7 proposal; or, You have to do this. I mean --
8 MR. MISETIC: Mr. President.
9 JUDGE ORIE: Cooperative attitude, brief meeting often will pave
10 the way for further results.
11 MR. MISETIC: That is certainly the position of the Gotovina
12 Defence and I will add that, Mr. President, it's been our experience when
13 we actually sit down face to face that we have fruitful resolutions of
14 problems, and when we resort to paper that is when things get off the
15 tracks a little bit.
16 JUDGE ORIE: And you have missed that for two month, I do
17 understand, yes.
18 Then ...
19 [Trial Chamber confers]
20 JUDGE ORIE: The Chamber, in its ever optimism, would like to
21 hear from the parties by this Friday, not about whether but what results
22 were achieved in the further conversations.
23 MR. HEDARALY: That's fine, Mr. President.
24 JUDGE ORIE: Mr. Misetic, I see you nodding yes as well.
25 MR. MISETIC: Yes, Mr. President.
1 JUDGE ORIE: Then it's time for a break.
2 We will resume at 11.00.
3 --- Recess taken at 10.36 a.m.
4 --- On resuming at 11.03 a.m.
5 JUDGE ORIE: Is there any news to be reported on the issue of
6 disclosure of expert reports?
7 Mr. Kehoe.
8 MR. KEHOE: Yes Mr. President.
9 Mr. Russo and I discussed this at the break, and we are going to
10 just get some time-frames coming back in the office and we're going to
11 consult later on today, And I think we can resolve this amicably on
12 time-frames without a need for court order. I do think we're both on the
13 same page in this regard, so ...
14 JUDGE ORIE: Yes. And when will the Chamber be informed of the
15 results of?
16 MR. KEHOE: If we could just inform you at the beginning of next
17 week, if that's satisfactory, when the --
18 JUDGE ORIE: Yes. There's no expert yet scheduled to --
19 MR. KEHOE: No, Your Honour
20 JUDGE ORIE: -- to be called at this moment.
21 MR. KEHOE: Not for some time.
22 JUDGE ORIE: Yes. Then under those circumstances beginning of
23 next week is acceptable to the Chamber.
24 Then I would like to move on to the next point in my agenda,
25 which is the Gotovina Defence would review the maps and ensure that all
1 targets from the Jagoda target list are depicted on the maps and that all
2 targets are described on the maps in accordance with the formulation we
3 find on the Jagoda list.
4 MR. KEHOE: Yes, Mr. President. We have done that and yesterday
5 it was e-mailed to Mr. Russo for his review. I think we can come back to
6 the Chamber relatively quickly with a consensus on that.
7 JUDGE ORIE: Yes. Was it just the one or were there other --
8 MR. KEHOE: There were -- the problem with the designation is,
9 and I went back and talked to the staff that did it, that there was not
10 enough space to put all of the writing in, and -- so we've tried to
11 abbreviate it accordingly. And that has been a difficulty on some of
12 those targets. You remember those -- they had that one target that was a
13 multitude of targets. If you put all that writing in, it just doesn't
14 merge with Google Earth and that was the difficulty. And certainly after
15 Mr. Russo looks at it, we're willing to edit that so it's as transparent
16 as possible for all involved.
17 JUDGE ORIE: Mr. Russo.
18 MR. RUSSO: Yes, Mr. President. Apologies for not responding to
19 the e-mail prior to today. I took a look at it. I don't have any issue
20 with what was sent over.
21 JUDGE ORIE: Yes. So, therefore, apparently the material is
22 ready to be refiled.
23 MR. KEHOE: Yes, we will do that today.
24 JUDGE ORIE: And that -- so the series of maps will be replaced
25 in e-court by the updated ones, and they were marked for identification.
1 MR. KEHOE: They were, Mr. President.
2 JUDGE ORIE: And then the Chamber will decide an admission.
3 MR. KEHOE: Yes, Your Honour.
4 JUDGE ORIE: Thank you.
5 It was D1460 which we were talking about.
6 The Chamber has also considered whether or not it should admit
7 into evidence P2502, which is the municipal court judgement, in relation
8 to Witness -- a claim made by Witness 13. The Chamber decides that this
9 exhibit does not meet the standards in respect of relevance and probative
10 value and is therefore not admitted into evidence. That's the judgement
11 about war damage and how that is defined under Croatian law and what
12 results that has in that litigation.
13 I move to my next subject which is a statement by the Chamber
14 related to the unredacted version of Witness Mate Lausic's diary.
15 The parties are aware that the redacted diary of Witness
16 Mate Lausic is in evidence as Exhibit P2166. The parties will further
17 recall that the witness explained, at transcript page 15.386, that before
18 providing a typed version of his diary to the Prosecution, he redacted
19 portions he described as being of a purely personal nature.
20 At transcript pages 15.421 to 15.423, the Chamber then asked the
21 witness to provide the full unredacted version of the diary to the
22 Chamber so that it could verify with the parties that everything redacted
23 by the witness was indeed of a private nature. Through the victims and
24 witness section, the witness has since, on two occasions, provided the
25 Chamber with unredacted parts of his diary. With regard to the first
1 part, the Chamber reviewed the portions the witness had identified as
2 purely private but could not confirm this assessment. After a further
3 communication with the witness, he no longer objected to the usage of the
4 first part in an unredacted form.
5 With regard to the second part, the witness left it to the
6 Chamber to make the assessment of which parts should be disclosed to the
7 parties. After an assessment of the second part, the Chamber is of the
8 opinion that the diary parts do not contain matters of a purely private
9 nature and therefore finds that it is appropriate to make both parts
10 available to the parties in an unredacted form.
11 The registrar has therefore been instructed to provide each party
12 with a copy. Should the parties wish to make further submissions on the
13 matter, the Chamber will hear from them in due course.
14 And this concludes the Chamber's statement relating to
15 Mate Lausic's diary.
16 I move on to the next issue on my agenda, which deals with a
17 pending motion filed by the Cermak Defence for material in the Martic
18 case, protected material.
19 The Chamber has not yet received from the Prosecution a response
20 but would already like to raise a matter in this context.
21 The Cermak Defence has set out a summary of the subject matter in
22 the evidentiary material which is protected to the extent possible,
23 because one of the testimonies was in closed session, and, therefore, the
24 Cermak Defence was not able to give details already about the content of
1 Looking at the submissions by the Cermak Defence to the extent it
2 was aware of the content of the testimony, the Chamber wondered where
3 whether this material could be considered exculpatory evidence. If that
4 would be the case, under Rule 75(F)(ii) it is clear that if there are
5 protective measures ordered in relation to a certain matter, that, still,
6 a disclosure obligation, if that material is exculpatory, binds, is --
7 creates an obligation for the Prosecution.
8 In that case, as a matter of fact, and, again, under the
9 hypothesis that this material could be considered exculpatory and to some
10 extent, of course, the Chamber would not know either, especially not even
11 have an idea, especially in view of material which we were not informed
12 about the content. If, however, the Prosecution would consider this to
13 be exculpatory, and the Chamber got a bit of the feeling that the
14 material was sought because of its exculpatory character on its face,
15 then, of course, there would have been no need, at least for those
16 portions where we are aware, where Mr. Kay is aware of the content, there
17 would have been no need to file a motion because the disclosure
18 obligation on exculpatory material would still be there. Although the
19 Prosecution would then have to inform the Cermak about the protective
20 measures that were ordered in respect of that material and to inform
21 Mr. Kay that -- that those protective measures were still effective.
22 So we have not yet received a response, but the Chamber wondered
23 whether or not, for quite a portion of the material covered by the
24 motion, whether it was -- whether there existed any need at all, and for
25 the Prosecution to perhaps include its views on this matter in a
1 response, if, of course, the Prosecution would not yet come to the
2 conclusion that there was an ongoing disclosure obligation in relation to
3 this matter, in which case, I take it, disclosure would most likely lead
4 to a withdrawal of the motion.
5 MR. KAY: Your Honour, there is another motion in fact waiting,
6 because we are anxious to get this material as quickly as possible dealt
7 with and we were hoping to deal with it during the break in the case. As
8 it is, we will now have unfinished business whilst the trial is ongoing
9 and we have another one which Ms. Higgins has drafted which was about to
10 be served. We have just served a Rule 66, 68 disclosure by the
11 Prosecution and I have been looking at it and I cannot see it satisfies
12 any of the issues we're concerned with.
13 But Ms. Higgins may be able to say more on the matter.
14 JUDGE ORIE: Ms. Higgins, if you could spend a few words on the
16 MS. HIGGINS: We wanted to review so that we could thoroughly
17 assess the situation as to whether or not other material that we suspect
18 exists in the cases such as Milan Martic, Milosevic, and Babic, has been
19 served upon us. To our record search to date it has not and our searches
20 were ongoing as of yesterday.
21 So what we had done was to draft a Rule 68 motion, which is due
22 to be served either today or tomorrow, requesting an overall view of
23 whether or not that Rule 68 has been served in accordance with the
24 Prosecution records, and if not, service immediately upon the Defence so
25 that we can then make our preparations to ensure that we are able to
1 utilise the information for Defence purposes.
2 I should say that prior to drafting the Rule 68 motion which is
3 still pending, we had been in informal discussions with the Prosecution
4 via e-mail contact which had been unsatisfactory in our view, and it was
5 for that reason that we have drafted the motion. And to make it easier
6 for the Chamber, those communications are set out as briefly as possible
7 so that Your Honours can understand where we are at the moment.
8 I hope that assists.
9 JUDGE ORIE: Thank you, Ms. Higgins.
10 Well, the Chamber has drawn the attention to a potential issue
11 that is the obligation to disclose exculpatory material. The Chamber has
12 not formed any opinion whether it is or not but certainly draws the
13 attention of the Prosecution, in this respect, to Rule 75(F)(ii). We'll
14 then look at the motion to come. We'll see what the Prosecution's
15 response will be to the pending motion and whether it -- and if it
16 results in any further disclosure, even without an order, of course, the
17 Chamber would like to be informed about it.
18 I move on to my next item which is the last item on the agenda
19 prepared by the Chamber. That is, I will read a decision on protective
20 measures for Witness 67.
21 On the 9th of March, 2009, the Prosecution requested the
22 protective measures of pseudonym and under seal treatment for Witness 67.
23 The Prosecution argued that Witness 67 was concerned about testifying
24 publicly and did not want her identity as a witness divulged to the
1 On the 16th and 17th of March, 2009, respectively, the Cermak and
2 Markac Defence responded to the request, not objecting to it. The
3 Gotovina Defence did not respond to the request.
4 Witness 67's statements were admitted pursuant to Rule 92 bis of
5 the Tribunal's Rules of Procedure and Evidence on the 5th of March, 2009.
6 None of the Defence teams objected to the admission of Witness 67's
8 As the Chamber held in previous decisions on protective measures,
9 the party seeking protective measures for a witness must demonstrate an
10 objectively grounded risk to the security or welfare of the witness or
11 the witness's family, should it become known that the witness has given
12 evidence before the Tribunal.
13 Witness 67 is a Croatian Serb who is one of the survivors of a
14 Scheduled Killing Incident outlined in the indictment. She expressed
15 fear for her safety as she now lives in the same general area as during
16 the war. She is worried that those who shot her in 1995 might seek
17 retribution for her testimony before the Tribunal and might come back to
18 harm her. Witness 67 is still very troubled by her experiences and the
19 fact that the Croatian authorities had been contacting her for their
20 investigations of the wartime incidents exacerbated her fears.
21 Keeping in mind the fact that the Defence did not object to the
22 request, the Chamber found no reasons to come to a different conclusion,
23 and the Chamber therefore grants the motion for protective measures for
24 Witness 67 and instructs the registrar to keep under seal Witness 67's
25 two witness statements and her Rule 92 bis attestation.
1 And this concludes the Chamber's decision to grant protective
2 measures for Witness 67.
3 I have no further items on my agenda, and I invite the parties to
4 raise whatever could be appropriately raised during this Pre-Defence
6 MR. HEDARALY: We have no other matters to raise, Your Honour.
7 JUDGE ORIE: No other matters.
8 Gotovina Defence.
9 MR. KEHOE: We have nothing, Mr. President.
10 JUDGE ORIE: Cermak Defence.
11 MR. KAY: No, Your Honour, thank you.
12 MR. MIKULICIC: No, Your Honour, not for the moment.
13 JUDGE ORIE: Thank you. Well, the moment is now over,
14 Mr. Mikulicic. So -- no, no, I do understand your --
15 That means that we can conclude this Pre-Defence Conference. Let
16 me -- one second.
17 [Trial Chamber and legal officer confer]
18 JUDGE ORIE: We can conclude this Pre-Defence Conference, and we
19 will adjourn and resume until tomorrow, Thursday, the 28th of May,
20 quarter past 2.00, in Courtroom I.
21 --- Whereupon the hearing adjourned at 11.26 a.m.,
22 to be reconvened on Thursday, the 28th day of May,
23 2009, at 2.15 p.m.