Tribunal Criminal Tribunal for the Former Yugoslavia

Page 20671

 1                           Friday, 24 July 2009

 2                           [Open session]

 3                           [The Accused Gotovina and Markac not present]

 4                           --- Upon commencing at 11.12 a.m.

 5             JUDGE ORIE:  Good morning to everyone.

 6             I see that Mr. Gotovina and Mr. Markac have waived their right to

 7     be present in court today.

 8             Mr. Cermak, you are therefore alone now.

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

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

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

12     Prosecutor versus Ante Gotovina, et al.

13             JUDGE ORIE:  Thank you, Mr. Registrar.

14             We'll try to deal with a couple of procedural matters so that we

15     know what we still have to do during the recess period, or what we don't

16     have to do anymore.

17             I would first like to deal with scheduling issues after the

18     recess.  Not everything is yet entirely clear how we would use our time

19     after the recess and for what exactly.  Let me start with one informal

20     recess that there would be a break between the conclusion of the

21     Gotovina Defence case and the start of the Cermak Defence case.  The

22     Chamber, at this moment, on the basis of the reasons presented, has not

23     decided to grant a seven- or ten-days' break, but more will become clear,

24     perhaps if we deal with scheduling as a whole.

25             What we know at this moment is that the Gotovina Defence intends

Page 20672

 1     to call five witnesses after the recess, the total number of hours

 2     scheduled for examination-in-chief being 21 hours.  There still are a few

 3     uncertain matters, such as an application for 92 bis witnesses where no

 4     decision has yet been taken, where we do not even know what the position

 5     of the Prosecution will be, whether they want the Chamber to call the

 6     witnesses, the witness to be called for cross-examination.  We further

 7     have - and I'll deal with that at a later stage - we have an expert

 8     report which is sought to be admitted through taking judicial notice of

 9     it, so there are still a few uncertain factors anyhow.

10             Let's go back to the five witnesses after the recess.  On the

11     basis of the information the Chamber has received on the time needed for

12     cross-examination, which is a little bit over 40 hours, this would result

13     in total time for examination-in-chief and cross-examination of some

14     64 hours, which equals 18 court days.  The Chamber recently has had the

15     experience that sometimes the examination of witnesses took considerably

16     less time than foreseen.  Therefore, the Chamber invites the parties to

17     see whether they can agree on a realistic schedule for the weeks after

18     the break.  That would mean starting 24th of August.  So to come up with

19     a realistic schedule which would take, at the maximum, 15 days for

20     examination-in-chief and cross-examination.  If it could be done in less

21     than 15 days, the Chamber would certainly appreciate that.

22             Apart from that, the Chamber urges the Gotovina Defence to

23     organise the work in such a way that we would not have frequent gaps in

24     which considerable court time is -- remains unused.  The Chamber is aware

25     that this may cause specific problems.  When I think of Witness AG-2, I

Page 20673

 1     can imagine that that might not be easy.  But, nevertheless, the Chamber

 2     invites the Gotovina Defence to use all its inventivity in order to avoid

 3     what has happened recently, that is, that we are not in court for

 4     considerable time.  This would result, if agreed upon, at -- in finishing

 5     the Gotovina Defence case certainly not later than the 11th of September,

 6     and preferably earlier.

 7             As far as the start of the Cermak Defence case is concerned, the

 8     Chamber provisionally schedules the Cermak -- the start of the

 9     presentation of the Cermak Defence on the 17th of September.  So despite

10     the fact that the Chamber found no reasons to grant a break, the

11     practical effect might be, depending on how matters develop, that there

12     will be some break.  At the same time, the Chamber has considered that,

13     of course, the Cermak Defence should not be entirely dependant on, I

14     would say, the behaviour of other parties, the Chamber, and, of course,

15     the Cermak Defence itself, during the preceding weeks.  The Chamber will,

16     of course, first of all, have a close look at any agreed schedule the

17     parties come up with, and the Chamber will further closely monitor what

18     actually happens during those weeks, and, on the basis of those

19     observations, if there's any need to adapt the 17th of September as the

20     starting date, whether it could be earlier or later, we'll look at it

21     during those weeks.

22             This, as far as scheduling is concerned any -- I noticed, for

23     example -- the Chamber noticed and is, of course, unaware of what could

24     happen, but in relation to Witness AG- -- I think he was scheduled for

25     eight hours.  If we look at the statement we have received until now if

Page 20674

 1     that would be the subject matter covered by the examination-in-chief, the

 2     Chamber is not yet fully convinced that that would take up eight hours.

 3     But, again, it could be that other matters not yet in the statement would

 4     be part of it, so the Chamber is hesitant to say anything, but --

 5     Mr. Misetic.

 6             MR. MISETIC:  I think we should prepare as if it would take that

 7     long.  The reason being that the statement is short because the witness

 8     refused to read his daily communications with his superiors, if I can put

 9     it that way.  And, therefore, it may be necessary in court to show him

10     physically since he is not willing to look at the reports to show them in

11     court and then to ask him questions on the basis on what he wrote.

12             JUDGE ORIE:  Yes.  As I said before, the Chamber was unaware of

13     what might arise in viva voce testimony compared to the statement, and

14     this exactly are the kind of issues to be discussed between the parties.

15     I asked the parties to agree on a realistic schedule.

16             Any other matter in relation to scheduling?

17             Mr. Kay.

18             MR. KAY:  Your Honour, I can assist the Court, because having

19     been given the date, 17th of September, and appreciated the issues that

20     the Court is looking at, my first two witnesses will be expert witnesses,

21     and I have been able to receive this morning their translated reports.

22     They were reports prepared in the Croatian language, and they have now

23     been translated for me.  I have been able to review those reports, and

24     that has enabled me to make a more realistic assessment as to how long

25     they will be in direct examination.

Page 20675

 1             Those witnesses will be considerably shorter than the estimates

 2     given in our schedule.  I think General Feldi was put at six hours to my

 3     recollection.  Having seen his report, seen what it covers, and how it

 4     narrows the issues for me, I'm of the view, having had a quick read

 5     through today, that I could be one session of an hour and a half.  So the

 6     Court will see that a considerable effect will be on the duration of our

 7     time with our -- our witnesses being in a position of being better

 8     informed, as I am now.

 9             JUDGE ORIE:  Thank you for that information, Mr. Kay.  The

10     Chamber is appreciative of focus on the most efficient use of court time.

11             MR. KAY:  Yes.

12             The second witness, Mr. Kovacevic, exactly the same.  Having

13     received his report late last night, having reviewed it quickly, I can

14     see again my time is going to be considerably lessened with him.  And I

15     will obviously - now have I read it in English - be able to make those

16     kinds of tactical decisions which will help the Court's scheduling, and I

17     give notice to all parties that those two witnesses will be considerably

18     lesser than anticipated in our 65 ter (G) submission.

19             JUDGE ORIE:  Thank you, Mr. Kay.  The expression of our

20     appreciation when you had dealt with Mr. Feldi is therefore now doubled,

21     because Mr. Kovacevic is included now as well.

22             Any other matter in relation to scheduling?

23             MR. RUSSO:  Mr. President, the other matters that the Prosecution

24     had wished to raise will have some effect on scheduling.  I don't know if

25     you care to hear those now or take --

Page 20676

 1             JUDGE ORIE:  Yes, I think it was -- I think there are two -- for

 2     me, there are at least two issues, the one being the provisional position

 3     taken by the Prosecution in relation to the 92 bis statements.  There

 4     were 11 of them.  And another matter, but we might deal with that at a

 5     later stage, is the -- how to deal with the expert report of -- on

 6     political propaganda, the expert report by Mr. de la Brosse, I think.

 7     These are the two matters which seem to be related to scheduling.

 8             MR. RUSSO:  We also have the Prosecution's request regarding

 9     disclosures on all remaining experts, which, for the reasons I'll mention

10     later, will have an effect on scheduling.

11             JUDGE ORIE:  Yes.  It was announced that -- it is on my agenda

12     that you would like to address these matters.

13             As far as 11 bis, as 92 bis witnesses is concerned, could you

14     already give an indication of the position of the Prosecution in relation

15     to the need to call these witnesses for cross-examination of that we can

16     really treat them as 92 bis witnesses.

17             MR. RUSSO:  Mr. President, our position with respect to the

18     11 witnesses, first of all, we will be filing written objections to those

19     submissions.  However, we're very seriously considering and quite likely

20     will propose to simply submit the arguments which we would make regarding

21     each witness, as well as the evidence which we would present regarding

22     the witnesses, simply to do that in the submission, and leave it in the

23     Court's hands as to whether or not it is necessary under 90(H) to

24     discharge our obligation by actually putting these matters to the

25     witnesses since most of them will deal with credibility in any respect,

Page 20677

 1     but we're certainly amenable to the idea of simply leaving it in the

 2     Court's hands as to whether they should be called or not.

 3             One other matter with respect to that.  Mr. President, we would

 4     like to reserve the right in connection these witnesses since most of

 5     them are being called to rebut the testimony of one particular witness,

 6     we've tried to get the personnel file of that particular witness from the

 7     government of Croatia.  We've sent numerous RFAs and reminders, that has

 8     not been forthcoming.  The only disclosure we have ever had with respect

 9     to this particular witness has come through documents from the Defence.

10     So given how these matters get resolved, we would, if we get our hands on

11     that, seek to submit that to the Court.

12             JUDGE ORIE:  Yes.  I take it that the Gotovina Defence will wait

13     until it has received the written filing and then take a position on

14     that.

15             MR. MISETIC:  Yes, except for the last portion, I think we would

16     object if they had an interest in the witness's personnel file.  He was

17     their witness on direct, and it should have been tendered at that time.

18             JUDGE ORIE:  Mr. Russo.

19             MR. RUSSO:  The point being that we couldn't get it by that time.

20     We still haven't received it.

21             MR. MISETIC:  I think, Mr. President, with all due respect if

22     Mr. Russo can confirm that they asked for the personnel file before the

23     witness testified.

24             MR. RUSSO:  On that, I can't be positive, Mr. President, but I

25     will certainly check on that.

Page 20678

 1             JUDGE ORIE:  Sometimes matters come up, but the Chamber will

 2     consider whether -- what to do with that, once it has seen all the -- the

 3     submissions by both parties.

 4             As far as discussions on these kind of matters are concerned,

 5     during the recess, most of the Judges can be reached, if urgent matters

 6     are to be decided upon.  At the same time, Judges, as all lawyers would

 7     like to enjoy some of their holidays as well.

 8             MR. MISETIC:  On that optimistic note, Mr. President, I wanted to

 9     make an oral motion along the exact same lines as what we did last year

10     at the break concerning the time for filing responses, and ask orally

11     move that the same procedure as appears at transcript page 7204,

12     beginning at line 2, apply now with respect to the time to file responses

13     to any motions that are filed.

14             JUDGE ORIE:  First of all, we look up page 7204.

15             If there could be agreement between the parties on these matters,

16     then, of course, we'd like to hear from you.

17             I move to my -- having dealt with scheduling issues, I'll move to

18     the next item on my agenda.  The Chamber would like to deliver its

19     decision on admitting Exhibits D1540, D1541, D1542, D1544, D1545, D1546

20     D1551, D1552, and D1567.

21             On the 30th of June of this year, the Gotovina Defence tendered

22     the following documents:  D1540 through D1546.  The Prosecution objected

23     to their admission.  On the same day, the Chamber invited the parties to

24     make written submissions on the admissibility of those documents, which

25     are Official Notes taken by the Zadar-Knin crime police department in

Page 20679

 1     1995.  D1546 also contains a statement signed by an interviewee.  All of

 2     this can be found between transcript pages 19478 and 19503.

 3             On the 1st of July, the Gotovina Defence further tendered D1551

 4     and D1552, which the Chamber included in its previous invitation to make

 5     written submissions.  This can be found at pages 19596 and 19597.

 6             On the 2nd of July, 2009, D1567 was similarly tendered and added

 7     to the invitation.  This can be found at transcript page 19716.

 8             On the 3rd of July, 2009, both the Prosecution and the

 9     Gotovina Defence filed their submissions.  The Prosecution no longer

10     objected to the admission of documents D1542 and D1546.  The parties did

11     not address D1551 and D1552 in their submissions.

12             In its submissions, the Prosecution objected to the admission of

13     the documents into evidence because they are statements of witnesses on

14     the Gotovina Defence's witness list, and the Prosecution was informed

15     that the Gotovina Defence no longer intended to call those witnesses to

16     testify.  The Prosecution submitted that the Gotovina Defence, by

17     tendering those documents into evidence, was circumventing its decision

18     not to call the witnesses, making reference to an oral decision the

19     Chamber rendered on the 19th of November, 2008.  That decision ordered

20     the redaction of two paragraphs in William Hayden's statements that

21     referred to the evidence of Colonel Hjertnes.  In that particular case,

22     the Chamber found it inappropriate to admit those portions into evidence.

23             The present case differs in two significant respects.  Firstly,

24     the redacted statements were obtained for the purpose of judicial

25     proceedings before this Tribunal, while the tendered documents are

Page 20680

 1     contemporaneous out of court statements prepared by non-parties and not

 2     taken for the purpose of the Tribunal's proceedings.  Secondly, in the

 3     previous instances, there had been a dispute amongst the parties about

 4     whether Colonel Hjertnes, who made the later redacted statements, should

 5     be withdrawn.  On the 10th of March, 2008, despite objections of the

 6     Gotovina Defence, the Chamber allowed the Prosecution to remove

 7     Colonel Hjertnes from the witness list.  It was in light of this dispute

 8     that the Chamber found it inappropriate to include portions of documents

 9     which referred to Colonel Hjertnes's withdrawn evidence.  The Chamber did

10     not make a general finding according to which the withdrawal of a witness

11     from a witness list would preclude the admission into evidence of

12     documents referring to the withdrawn evidence.  In here relevant respect,

13     the Chamber finds little merit in the analogy with the 19th of

14     November 2008 decision as proposed by the Prosecution.

15             The Chamber notes that it has previously admitted several

16     Official Notes.  In its 30th January 2009 decision, the Chamber

17     determined that Official Notes may be admitted if they meet the

18     requirements of Rule 89(C) and (D).  That is, if the documents are

19     relevant and of probative value, and the probative value is not

20     substantially outweighed by the need to ensure a fair trial.  In the

21     present case, no argument was advanced by the Prosecution challenging

22     either the relevance or the probative value of the documents.  The

23     Gotovina Defence explained that it tendered the documents to show

24     investigative steps taken by the Croatian civilian authorities with

25     regard to incidents of killing, burning, and looting after

Page 20681

 1     Operation Storm.  On the basis of this argument, and having examined the

 2     documents, the Chamber is satisfied that these contemporaneous official

 3     Croatian MUP documents satisfy the requirements for admission under

 4     Rules 89(C) and (D) of the Rules.  The Chamber, therefore, admits into

 5     evidence D1540, D1541, 42, 44, 45, 46, D1551, 52, and D1567.  The Chamber

 6     emphasises that the admission into evidence of these documents is in no

 7     way an indication of the weight, if any, which the Chamber may ultimately

 8     attach to them.

 9             And this concludes the Chamber's decision to admit the

10     aforementioned documents into evidence.

11             For the next item, we briefly have to move into private session.

12                           [Private session]

13   (redacted)

14   (redacted)

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Page 20682

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 6                           [Open session]

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

 8             JUDGE ORIE:  Thank you, Mr. Registrar.

 9             The Chamber lifts the confidentiality of the Trial Chamber's

10     decision on motion for provision release.  This decision is dated the

11     2nd of December 2008 and concerns Mr. Cermak.

12             I move to the next item on my agenda.

13             The Gotovina Defence wanted to rely on 1D588, which is the

14     Prosecution's pre-trial brief in Stanisic and Simatovic.  That is what we

15     understood that the Gotovina Defence wanted to do, and we will see what

16     formal follow up should be given to that.

17             MR. MISETIC:  Yes.  Mr. President, if I could just make one

18     correction, that 1D588 is the full pre-trial brief in agreement with the

19     Prosecution.  We have redacted portions of that brief to make it as

20     relevant as possible to this case, and the redacted the version of that

21     brief is now 1D2782.

22             JUDGE ORIE:  Yes.  Apparently you have discussed the matter.  You

23     want to tender this into evidence.  In view of the fact that you have

24     discussed the matters with the Prosecution, does that mean that there's

25     no objection or ...

Page 20683

 1             MR. HEDARALY:  That is correct, Your Honour.  We don't object to

 2     those portions of the Prosecution's -- the Prosecution's pre-trial brief

 3     in that case to be admitted into evidence.

 4             JUDGE ORIE:  Yes.  The Chamber wondered, in view of the fact that

 5     there is no objection to it, that to admit into evidence the parts of a

 6     pre-trial brief, of course, raises the issue what exactly the parties

 7     were seeking with that.  And I think it's clear that the Gotovina Defence

 8     sought those portions to be in evidence, in order to have the Chamber

 9     look at the consistency of the positions taken by the Prosecution in the

10     Stanisic/Simatovic case and the present case.

11             Is that --

12             MR. MISETIC:  Actually --

13             JUDGE ORIE:  Mr. Misetic.

14             MR. MISETIC:  -- the way things transpired is we proposed those

15     portions to be stipulated as agreed facts between the parties.  The

16     Prosecution has, for its own reasons, asked that it not be done as a

17     stipulation of agreed facts but that we tender it into evidence in the

18     form that we are now tendering it into evidence.  I would leave it my

19     colleagues on the Prosecution side if there is any further issue

20     regarding the form to address the matter.  But from our perspective, we

21     first wanted it as stipulation of agreed facts.  And in discussions with

22     our colleagues on the other side of the isle, we have agreed to

23     accommodate them by tendering it in this form.

24             JUDGE ORIE:  Yes.  So it went further, it went to the truth of

25     the content.

Page 20684

 1             MR. MISETIC:  Yes, Mr. President.

 2             JUDGE ORIE:  Yes.  And apparently there is no agreement on the

 3     truth of the content such that could be submitted to this Chamber as

 4     agreed facts.

 5             MR. MISETIC:  I would leave it the Prosecution to --

 6             JUDGE ORIE:  Mr. Hedaraly.

 7             MR. HEDARALY:  I think -- I think, Mr. President, that the

 8     Chamber can appreciate the situation that these are allegations that the

 9     Prosecution has made in another case that it intends to prove in that

10     case, and we were just uncomfortable with, at this stage, having one

11     Chamber essentially agree to those facts and say that these, in fact,

12     occurred, when these are the subject of another case where we will be

13     seeking to prove those facts, and that's why -- of course, we don't --

14     those are facts we intend to prove in another case so we don't disagree

15     with them, but, procedurally speaking, it seemed to be a bit of a strange

16     situation.  And that's why we propose to have it this way, so that at

17     least it is clear that these are allegations that the Prosecution intends

18     to prove in that case, but this is what they are.

19             JUDGE ORIE:  Yes.  You would say if you would fail to offer

20     sufficient evidence of those facts, that would you reconsider your

21     position as to whether these are true facts or not.

22             MR. HEDARALY:  That is correct, Mr. President.

23             JUDGE ORIE:  There is no disagreement, from what I understand,

24     that those portions were presented as the position of the Prosecution in

25     that other case.

Page 20685

 1             MR. HEDARALY:  That is correct, indeed.  And just the last issue

 2     on the -- on the stipulation was that when we were approached to

 3     stipulate to those facts, the reason also is, if you remember, we have

 4     raised a few relevance objections to it, so we did not want to be the

 5     proponents of the fact.  That's why we propose that the Defence tenders

 6     them, and we will not object based on the Chamber's guidance and rulings

 7     we have received previously about matter that we believe are, at best,

 8     only peripherally relevant to this case.

 9             JUDGE ORIE:  Thank you.

10             Mr. Misetic, any further -- thank you.

11                           [Trial Chamber confers]

12             JUDGE ORIE:  Mr. Registrar, could you please assign a number to

13     1D278.

14             THE REGISTRAR:  Your Honours, that becomes Exhibit D1625.

15             JUDGE ORIE:  Mr. Misetic.

16             MR. MISETIC:  1D2782.

17             JUDGE ORIE:  1D2782.  I'm always a bit puzzled because I thought

18     that numbers would always have the same number of digits and -- but

19     perhaps in 1D588, a zero is missing after the D.  It's not.  So they have

20     -- if everyone understands, we're talking about ...

21             MR. MISETIC:  I'm advised that it does not have to,

22     Mr. President.  Have four digits, but ...

23             JUDGE ORIE:  Okay.  Fine.  We are talking, whatever the number

24     is, about portions of the Prosecution's pre-trial brief in the Stanisic

25     and Simatovic case.

Page 20686

 1             Mr. Registrar.

 2             THE REGISTRAR:  Your Honours, that's 65 ter 1D2782, and it

 3     becomes Exhibit D1625.

 4             JUDGE ORIE:  And is admitted into evidence.  The Chamber

 5     appreciates the explanation the parties have given on how they -- from

 6     what angle they consider this exhibit.

 7             I would again like to go into private session for some moments.

 8                           [Private session]

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Page 20687











11  Pages 20687-20690 redacted. Private session.















Page 20691

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16                           [Open session]

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

18             JUDGE ORIE:  Thank you, Mr. Registrar.

19             The Prosecution has indicated that it would like to address the

20     issue of Defence disclosure obligations in relation to expert witnesses.

21             Mr. Russo, is it you who will address the Chamber?

22             MR. RUSSO:  Yes, Mr. President.

23             Mr. President, let me -- this is a rather lengthy history.  I

24     will try to cut it down.

25             Basically what the Prosecution is looking for from the Defence is

Page 20692

 1     -- are three things at this point.  We asked for more in the past, but we

 2     sort of whittled our interest down to three main things.  Number one, a

 3     list of all of the information; that includes evidence, documents, or any

 4     other kind of information provided to each witness.  Secondly, being any

 5     communications or all communications had between the Defence and their

 6     expert witnesses.  And, thirdly, the draft -- any draft reports submitted

 7     by the experts to the Defence teams or vice versa as we heard in regard

 8     to the witness yesterday.

 9             Now, Mr. President, we fully understand the Defence`s position

10     that there is no particular rule under which this material was requested.

11     However, the basis for our request is simply that this -- and I believe

12     we included this on the e-mail that was forwarded to Chambers, these are

13     proper matters for cross-examination.  The material that the witness

14     reviewed, what they were told by the Defence, what they said to the

15     Defence, any previous positions or changes they may have made in their

16     reports, all proper areas for investigation on the cross-examination.

17     We're simply trying to cut down the amount of time we have to spend with

18     the witnesses on the stand, pulling this information out of them, when,

19     if it is provided to us in advance, to could very easily become a

20     non-issue for us.

21             I can go through the history of our request for this, but suffice

22     it to say that we asked for this material on the 6th of May, and then a

23     follow-up, bit of a broader request on 7th of May, and we've been back

24     and forth on the issue as the Court has seen through correspondence since

25     then.  We were provided with correspondence between the Gotovina Defence

Page 20693

 1     and Witness Cross, prior to his arrival on the stand which we were

 2     certainly appreciative of.  Of course, we didn't get everything we asked

 3     for, but we understood that to mean that there would be such disclosures

 4     with regard to other witnesses.  We couldn't get a definite answer on

 5     that.  We did also have some discussions the other day with respect to

 6     Professor Corn's information, and we were told that we might receive a

 7     list of exhibits that will be used with him during cross-examination, and

 8     advisement as to whether that -- I'm sorry.  On direct examination, an

 9     advisement as to whether that list encompasses what was shown to him

10     prior to or whether it does not.  However we would much prefer simply a

11     transparent list for each witness of the documents or information given

12     to them in order for them to prepare the reports or subsequently to that.

13     The issue of draft reports and communications is attendant also for the

14     same considerations.

15             JUDGE ORIE:  Thank you, Mr. Russo.

16             Mr. Kehoe.

17             MR. KEHOE:  Mr. President, what I did some time ago is invite

18     Mr. Russo to put his position in writing.  We have fulfilled our

19     obligations under Rule 97 concerning what we had to turn over to them.

20     It is interesting to -- 67 excuse me, under Rule 67.  It is interesting

21     to note somewhat of an inconsistent position taken by the Prosecution on

22     the disclosure of expert materials.  Nevertheless there is a different

23     obligation on the Prosecution --

24             JUDGE ORIE:  If I would invite to you slow down.  You wouldn't

25     mind, would you.

Page 20694

 1             MR. KEHOE:  Yes.  Sorry, Mr. President.  Sorry to the

 2     translators.

 3             There is clearly different disclosure obligations on the

 4     Prosecution under Rule 66 and 68, as opposed to what the disclosure

 5     obligations by the Defence under Rule 67.  That being said, we invited

 6     the Prosecution to lay out their concerns and their legal basis for their

 7     request.  And we would answer that request, and we invite them to do that

 8     once again.  This is circumscribed by the rules.  I hasten to add that

 9     Mr. Russo, himself, when we invited or asked the Court in the interest of

10     justice to tell Mr. Russo to put his case concerning shelling to

11     Mr. Rajcic, Mr. Russo said that Rule 90(H) only applies to

12     cross-examination and not to direct examination.  And as a result of that

13     Rule, there was no basis upon which for him to require the Prosecution to

14     put his case to the witness.

15             THE INTERPRETER:  The interpreters kindly ask to you slow down.

16             MR. KEHOE:  My apologies again.

17             The answer to this, is quite simple.  It falls within the four

18     corners of Rule 67.  We have complied with the Rule 67, and we will

19     continue to comply with Rule 67.  And we welcome the opportunity to

20     answer any submission given to the Court by the Prosecution on this

21     score.

22             And again, my apologies to the interpreters for speaking so

23     quickly.  If I might have one moment.

24             I'm reminded of one last fact by my colleague Mr. Misetic.  And

25     than is the position of the Prosecution today, in this case and others,

Page 20695

 1     is that they have no obligation to disclose communications with their

 2     witnesses, be it experts or otherwise.

 3             So given these positions, and given the inconsistent approach

 4     taken by the Prosecution in this case, we invited the Prosecution to make

 5     a submission to the Court, cite the legal basis upon which they request

 6     this information, and allow the Defence the appropriate time to respond

 7     as we, of course, will.

 8             Thank you, Mr. President.

 9             JUDGE ORIE:  Thank you, Mr. Kehoe.

10             Mr. Russo.

11             MR. RUSSO:  Very briefly, Mr. President.

12             First of all, regarding the allegation of an inconsistent

13     position, I want to be clear, with respect to Lieutenant-Colonel Konings,

14     I did provide the draft reports in advance of the witness coming.  I did

15     provide and in fact file with the addendum the list of material given to

16     Lieutenant-Colonel Konings, and I did provide all communications we had

17     with Lieutenant-Colonel Konings.

18             So there is no inconsistency in that position.

19             I'm not sure what the Rajcic 90(H) issue relates to, so I will

20     simply pass that up.  But with respect to any obligations, I have already

21     made clear that we're not stating that this is an absolute obligation on

22     the part of Defence under a particular rule to provide us with this

23     information.  We're asking for it in the interests of judicial economy.

24     And if you want to basis, I can say Article 20 requires a fair and

25     expeditious proceeding, but I don't think it is necessary to go that far.

Page 20696

 1     I think this is simply a matter of attempting to save time for both the

 2     Defence and the Court and all others concerned.

 3             But beyond that, Mr. President, since we were asking for this

 4     material for quite a lot of time and were not getting what we asked for,

 5     we simply went or attempted to go directly to the witnesses.  I spoke to

 6     General Cross.  I agreed to give me what I asked for.  And he did in fact

 7     provide me with a PowerPoint presentation upon which he used -- based his

 8     initial report.  But he a discussion with the Defence notice meantime,

 9     and they told him that - this is what he told me - that they would take

10     care of the disclosure.  So we attempted to get it directly from the

11     witness, which I believe we're entitled to do.  But if the Defence

12     chooses to intervene and take responsibility for the disclosure, then I

13     believe they do have some obligation to do it, or at least not attempt to

14     interfere with us getting it directly from the witness.

15             But that being said, Mr. President, I did put this position in

16     writing as the Court can see from the e-mail which was forwarded to

17     Chambers.  I told Mr. Kehoe that our position was that this was material

18     which is the proper subject of cross-examination and we were seeking this

19     material for purposes of judicial economy.

20             JUDGE ORIE:  Brief response, Mr. Kehoe.

21             MR. KEHOE:  Very brief.  The response to General Cross as to

22     every witness is that the disclosures would be made pursuant to the

23     Rules.  Quite simply that.  That was fertile area for cross-examination

24     by Mr. Hedaraly, as well it should have been.  That doesn't, doesn't

25     circumvent the Rule in which sets out the Defence's required disclosures

Page 20697

 1     under Rule 67.

 2             Now, with regard to the documents that are going to be used, we

 3     are going to give them and have given with regard to -- well, certainly

 4     cross and Corn, all of the documents that could be potentially used with

 5     Professor Corn.  That includes those he looked in to rely on and those

 6     that he just examined and didn't rely on.  Which, frankly, are fertile

 7     areas for cross-examination by the Prosecution.

 8             Now my reference to the Rule 94(H) was simply this:  The Rule is

 9     the Rule.  When the Prosecution saw fit to rely on the rules to get what

10     they wanted, they responded that Rule 94(H) didn't require them to cross

11     during their direct case.  We are simply asking the Chamber to comply

12     with the Rules, and we will disclose our obligations under Rule 67, and

13     it's simple as that.  My analogy to Rule 94 was nothing more than that.

14     Excuse me, Rule 90(H) was nothing more than that.  And that's the simple

15     response, Mr. President.

16             JUDGE ORIE:  Thank you, Mr. Kehoe.  Of course, a reference to

17     simplicity always triggers -- if matter are as simple as that, one would

18     wonder why Mr. Russo doesn't see that.

19             Is there any of the other parties who would like to --

20             MR. KAY:  Your Honour, this is an issue that in our submission

21     covers all of the interests of the Defence parties.  It has arisen in the

22     Gotovina case, and the issues have been discussed between the Prosecution

23     and counsel for General Gotovina.  But, of course, there are

24     repercussions for the remaining Defence teams.

25             Your Honour, the issue in our submission was very clearly set out

Page 20698

 1     by the Prosecution team themselves in their filing on the 18th of

 2     November, 2008.  The Prosecution response to the Gotovina Defence motion

 3     to compel the disclosure of draft expert report of Reynaud Theunens.

 4             It's perhaps interesting to recollect how this issue arose.

 5     Mr. Theunens was interviewed by the Gotovina Defence team prior to his

 6     giving evidence.  He revealed, because the trial for this case was

 7     originally scheduled at a much earlier date, that he had presented a

 8     report to the Prosecution very few weeks before the original trial date

 9     of this case.  They asked him if they could see that report, and he was

10     willing to disclose it to them.

11             This case was then put back, and we know that the Theunens expert

12     report was filed on a later date, and that report contained significant

13     changes, so far as we were concerned, in relation to his expertise

14     concerning the position, role, and involvement of Mr. Cermak in this

15     case.

16             For my part, I had made no applications for Theunens's

17     disclosures of drafts.  Any matters that I would have dealt with would

18     have been in cross-examination.  So what arose did not come about as a

19     result of anything said by me.

20             When this issue was discussed in open court, Your Honour was

21     aware of issues concerning legal professional privilege, that was

22     documented in the transcript.  Your Honour was aware of other issues that

23     there had been no decision on this matter within the Tribunal

24     jurisprudence, and both parties agreed on that.  And then the matter was

25     left at that.  And Mr. Theunens was asked by Your Honour, and he

Page 20699

 1     voluntarily said that he would deliver that draft, and in fact it turned

 2     out there were three, four, or five versions, and they were disclosed to

 3     the Defence by Mr. Russo.

 4             The position, as I saw it then, having then seen the content of

 5     Mr. Theunens's draft, that this material fell fairly and squarely within

 6     Rule 68.  It was material that was exculpatory; it was material that

 7     contradicted the Prosecution case, capable even going to mitigation of

 8     guilt, whatever expression it was.  And, of course, this witness was an

 9     employee of the Prosecution, used as an expert, and of particular

10     interest to the Defence, as a result of his relationship with his

11     employers.

12             So there it was.  In the filing by the Prosecution that was made

13     and in all their arguments, they made clear that their position was that

14     they were only obliged to disclose materials within the Rules, and it was

15     stated that, in paragraph 10 of the filing of the 18th of November, that

16     having reviewed their materials, they said that there was nothing to

17     trigger disclosure obligations under Rule 68.  There are no such

18     circumstances here.

19             Well, in the outcome of the event, we were very concerned,

20     because we disagree with that, and the impact of Mr. Theunens's

21     statements which were dealt with in cross-examination, we submit clearly

22     went to the issues within Rule 68.

23             Our submission is, on this matter, that, in terms of documents

24     considered by an expert, taking our example, our experts have -- have

25     been given free range to look at any document they want within the

Page 20700

 1     database, within the materials of the Prosecution, Defence, anything.

 2     And we haven't constrained them.  They have been allowed to work on their

 3     own in an office and look at materials, and, so, for my part, I couldn't

 4     tell you what they'd looked at because it is simply endless.

 5             If you make a position with Mr. Theunens, there has been no

 6     disclosure to us of what he looked at.  Your Honour will remember the

 7     description of his task to me that he was considering documents, and they

 8     popped up on the screen or they didn't pop up on the screen.  I just use

 9     that as an expression, because this is the reality of how it works, and

10     how people inform themselves and brief themselves as to what they see and

11     how they construct a report.

12             In relation to communications, well these are plainly covered by

13     legal professional privilege.  I have no reason to hide behind that, but

14     I'm making this as a stand because this is an important principle of law

15     litigated in this Tribunal in the very first case of Tadic concerning the

16     impact of legal professional privilege, and it is a matter upon which the

17     whole structure of legal systems are built.  And I'm not going to be the

18     advocate who starts conceding on such a matter.

19             In relation to drafts and opinions, a draft can exist probably

20     100 times a day.  Any change you make to a document means that a document

21     is moved from one state to another.  In our submission, that is, in these

22     technological days, something impossible to capture.  The issue on

23     Theunens, however, was because he had submitted a report as an expert,

24     and that was what the Gotovina team were particularly interested in.  It

25     was given a title, a draft.  I don't know whether it was meant to be a --

Page 20701

 1     a preliminary report, a report at all, or a draft.

 2             That was just how that played out.  Sometimes in litigation that

 3     is what happens.  But in our submission, there is no requirement for the

 4     Defence to supply the Prosecution with drafts.  They must do their job by

 5     cross-examination of a witness, ask him if he has always consistently

 6     held a point of view.  If he says yes, investigate.  If he says, no,

 7     well, where was your previous point of view?  These are matters of

 8     cross-examination rather than disclosure, and, in our submission, we do

 9     no more than is necessary under our disclosure obligations within the

10     Rules, which strive to comply with.  And that's what we submit is the

11     proper basis for litigation between the parties.

12             Your Honour, those are my submissions.

13             JUDGE ORIE:  Thank you, Mr. Kay.

14             Anything the Markac Defence would like to add?

15             MR. MIKULICIC:  Yes, Your Honour.  In order to be being

16     repetitive as my learned friend before me stressed the situation, I would

17     only quote my learned friend Mr. Russo from the OTP, page 21, line 20:

18             "There is no particular rule under which the requested material

19     should be presented to the Office of the Prosecutor."

20             JUDGE ORIE:  Thank you.

21             Mr. Misetic.

22             MR. MISETIC:  If could I just make one point for the record,

23     Mr. President.

24             Mr. Russo stated that we had interfered in some communication he

25     had with Witness Cross.  We received an e-mail communication between

Page 20702

 1     Witness Cross and Mr. Russo.  As far as I know, the documents that

 2     Mr. Cross indicated would be provided to Mr. Russo were provided to him,

 3     and if they weren't, we weren't subsequently told by Mr. Russo that there

 4     was something in addition that was missing from whatever his agreement

 5     was with Mr. Cross.  I just wanted to be clear on that point.

 6             JUDGE ORIE:  The Chamber will consider whether it will ask for

 7     further written submissions on the matter.  This may, however, be clear

 8     that there are several elements involved in this discussion.  One is, and

 9     that's the one that has been stressed at least this morning very much by

10     Mr. Kehoe, is disclosure obligations.  There are, however, other aspects

11     as well, such as for a Chamber to evaluate the probative value of an

12     expert report, and I think we can find this in the case law of this

13     Tribunal as well, it is important to know what sources were used by that

14     expert, what methodology he applied.  So, therefore, apart from whether

15     there is any disclosure obligation, let's just, for argument's sake,

16     assume, which I think has not happened until now, that it would be

17     unclear what sources were given to or were used, whether they popped up

18     or not on the screen of the expert, then, of course, it would be very

19     difficult to assess to what extent the special skills, the special

20     expertise of the expert would have been properly applied on relevant,

21     factual material.

22             Now, what we've seen in the past is that -- let me add a third

23     issue.  That is, the genesis of a report I think everyone would agree

24     with Mr. Kay that what is a draft, of course, it changes every minute not

25     only in expert reports but even drafts for decisions.  At the same time

Page 20703

 1     there comes a moment when the content of the draft is shared with another

 2     person, another draft, which opens possibilities for exchanges, which can

 3     - I emphasise the word "can" - have an influence on the next draft.

 4     Therefore -- and that's different for all of the expert reports.  The

 5     genesis of those reports have sometimes triggered full attention, whereas

 6     in other circumstances, no one seemed to be very much interested in it,

 7     whether the expert is working on his desk, see what pops up on his

 8     screen, or whether he has a discussion with members of a team of a party

 9     who then provide a first draft based on those conversations, might be an

10     element which could have some importance in evaluating.

11             So we've seen that apart from the disclosure obligations, there's

12     more involved.  That is, the understanding, full understanding, and

13     there, of course, is a difference between a witness and an expert, a full

14     understanding as to how these opinions came into being on the basis of

15     what facts provided, on the basis of what -- on the basis of what series

16     of documents being made available, or we do not know, then -- at least we

17     could ask the expert whether he used them all or whether he stopped

18     halfway or -- these are important matters not only from a point of view

19     of disclosure but also important matters in view much evaluation,

20     evidentiary evaluation of the expert report.

21             Finally, there's a third element; that is, judicial economy.

22     That is, if you have not available to yourself already some of the

23     relevant data, it might take quite a bit of time in court to explore

24     these matters with, as a possible result, that finally, they turned out

25     not to be relevant.  Mr. Kay very much emphasised the importance of

Page 20704

 1     cross-examination.  These are the three elements.  That is, disclosure;

 2     second, the proper evaluation of what the expert report brings us; and

 3     the third is judicial economy.

 4             We're not going at this moment, of course, to decide on the

 5     matter.  What I will discuss with my colleagues is whether we think that

 6     we have received sufficient information on this issue, that sufficient

 7     argument has been raised, or whether we would give an opportunity to --

 8     or even ask the parties to make written submissions on the matter.

 9             We'll have a break, although I was confident that we might do in

10     one session, we'll certainly conclude in the next session.

11             We will have a break, and we will resume at 1.00.

12                           --- Recess taken at 12.32 p.m.

13                           --- On resuming at 1.03 p.m.

14             JUDGE ORIE:  During the break, the Chamber has considered whether

15     it will ask the parties to make any further written submissions on the

16     matter of disclosure of material, in relation to expert witnesses.  The

17     Chamber is not asking the parties to do so, which would not prevent them,

18     perhaps, from making further submissions, but we're not inviting the

19     parties.  If, however, a party would like to make further submissions,

20     then we'd like to receive them in two days -- in one week from today, so

21     that it doesn't come at the end.

22             Further, Mr. Kay, you have referred to professional secrecy in

23     the Tadic case.  Well, I'm not pretending any ignorance on what may have

24     happened in that case.  If would you have specific references to either

25     transcript pages and/or decisions, that would be appreciated.

Page 20705

 1             MR. KAY:  Right.  Yeah, I don't have those to hand.  The issue

 2     was the disclosure of Defence witness statements.

 3             JUDGE ORIE:  Witness statements.

 4             MR. KAY:  Yes.

 5             JUDGE ORIE:  Yes.  I -- then that's clear.  That's where I think

 6     the Trial Chamber, at the time, took approximately half a year before it

 7     rendered its written decision on the matter.

 8             MR. KAY:  The proceedings were suspended for a week, and it came

 9     at the stage where the Defence had called its first live witness.

10     Mr. Tieger got up and asked for the disclosure of Defence witness

11     statements.  No notice having been given.  We asked for an adjournment --

12             JUDGE ORIE:  Mr. Kay, it is clear what exactly you're referring

13     to --

14             MR. KAY:  Yes.

15             JUDGE ORIE:  -- in this respect to me, so we'll find --

16             MR. KAY:  Yes.

17             JUDGE ORIE:  [Overlapping speakers] ...  of course, there have

18     been -- I think it at was more than one occasion that provisional secrecy

19     played a role, but it's clear to me now at least to what instance you're

20     referring to.

21             MR. KAY:  Yes.

22             JUDGE ORIE:  Then I'd like to move on -- no, perhaps, first, have

23     the parties considered the extension of time-limits?

24             MR. HEDARALY:  That is fine, Your Honour, to have the three

25     weeks, as it was -- for the previous recess.  The only thing is if there

Page 20706

 1     would be a submission on the issue of expert disclosures, then that --

 2     I'm not saying we will file something, but to the extent there would be

 3     submission on that, then we would ask that the two weeks response time

 4     stay there because of the urgency of the issue, if there would be to be

 5     submissions, which I'm not sure there will be.

 6             JUDGE ORIE:  Yes.  We looked up the relevant page of last year,

 7     and I see that already at that time the issue was raised on when a motion

 8     would be filed one day before the expiration of the non-sitting weeks

 9     that that might be a bit too much then also to grant three weeks.

10             We have a rather tight schedule after the recess period, so,

11     therefore, where the parties are seeking the same, it will almost be the

12     same as last year.

13                           [Trial Chamber confers]

14             JUDGE ORIE:  The Chamber rules that the 14 days' time-limit

15     usually applicable for responses is, as of today, under Rule 126 bis is

16     generally extended to three weeks, and this ruling is valid for any

17     motion filed as of today until the 14th of August, which is the last day

18     of the formal recess.  So not to the last non-sitting day but until the

19     -- any filing on or before the 14th of August.  Nevertheless, the parties

20     are invited, if a motion is filed on the 14th, then the response is due

21     on the 4th of September.  If a motion would be filed on the 17th, then

22     the response would be due on the 31st of August, so we see that there is

23     a bit of an overlap.  The Chamber reserves its position as to shorten

24     those terms that would bring us into September because it is filing of

25     the last one or two days of the recess period, depending on the subject

Page 20707

 1     matter of that motion.  Of course, in general terms, the Chamber will

 2     consider whether there is any reason to even also to shorten time-limits

 3     for responses, depending on the subject matter.  But this, at least,

 4     gives some air to the parties as a general starting point.

 5             Then next item on my agenda, D1607, the 92 ter statement of

 6     Witness Sterc.

 7             Has that been uploaded in e-court in accordance with the partial

 8     admission?

 9             MR. MISETIC:  Yes, Mr. President.

10             JUDGE ORIE:  Thank you for that information.

11             We have another few subpoena issues to deal with, out-standing

12     subpoena issues for which we'll go into private session.

13                           [Private session]

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 20708

 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   (redacted)

19   (redacted)

20   (redacted)

21                           [Open session]

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

23             JUDGE ORIE:  Thank you, Mr. Registrar.

24             The next item is about the EUMM documents.

25             The Chamber would like to inform the parties that it has not yet

Page 20709

 1     received any response on its invitation from the EUMM, an invitation

 2     dated the 19th of June, and that the Chamber intends, at this moment, to

 3     send a message to the EUMM that it would be appreciated to receive a

 4     response not later than the 14th of August.

 5             If, meanwhile, the Gotovina Defence would have any further

 6     follow-up information for the Chamber, as to how the communications with

 7     the EUMM develops since then, it would be the appropriate time hear from

 8     it.

 9             MR. MISETIC:  Yes, Mr. President.  We, pursuant to the Chamber's

10     invitation, did retrieve some of the documents from Brussels, other

11     documents as you know were provided by the Prosecution.  There are still,

12     I believe three documents in the Chamber's invitation that still have not

13     been produced.  We are interested in obtaining a response from the EUMM

14     on those documents.  The reason being that based on the information

15     provided by the Prosecution, we believe that some of the documents were

16     in possession of private persons.  To the extent that the EU can give us

17     additional information even based on the three remaining documents as to

18     what other persons may have been or may be in private possession of the

19     documents, that would be information that we would need in order to

20     pursue retrieval.  In particular, I think we've made clear of the ECMM

21     log books in RC Knin, and for that purpose we would ask that the three

22     remaining documents, that we get some information from the EU as to where

23     those documents might be.

24             JUDGE ORIE:  Yes.  That's three out of the limited number of

25     documents that were specifically addressed in the invitation.

Page 20710

 1             MR. MISETIC:  That is correct.

 2             JUDGE ORIE:  Yes, thank you.  We'll keep this in mind when

 3     formulating any further communication with the EUMM.

 4             Any other party, any observations in respect of this?

 5             Then the next item is about documents MFI'd, P2547, 2548, 2549,

 6     and 2551.  These exhibits were tendered by the Prosecution in

 7     cross-examination of Witness Boris Milas.  The -- with the exception of

 8     P2548, the admission into evidence of these documents is denied, because

 9     the relevance and probative value of these documents does not meet the

10     standards of Rule 89(C).

11             P2548 is admitted into evidence.

12             I come to my next item, which is the submission of the

13     de la Brosse expert report.  The Gotovina Defence seeks it to be admitted

14     -- no, doesn't seek it to be admitted, but invites the Chamber to take

15     judicial notice of this report.  Another way of introducing it would be

16     to submit it as an expert report, seek the position of the Prosecution as

17     to the qualifications of the expert, relevance, and whether it accepts

18     the report or not, or whether the Prosecution seeks the expert to appear

19     as a -- to appear for cross-examination.

20             The taking of judicial notice of documents is not an

21     uncontroversial issue, whether it goes to the content of it, or whether

22     it's primarily meant to provide for a remedy if there are any

23     authenticity concerns about documents.

24             Have the parties considered or has the Gotovina Defence

25     considered to seek admission of the document under Rule 94 bis, I think

Page 20711

 1     it is?

 2             MR. MISETIC:  We've considered it, Mr. President.  If necessary,

 3     we will proceed under the Rule.  However, the reason we thought judicial

 4     notice or Rule 94 might be particularly appropriate here is that it's a

 5     document tendered by the other side in a particular case, so we thought

 6     there wouldn't be issues of the qualifications of the witness or the

 7     credibility of what's contained in the report.  However, if there is

 8     going to be an issue on that point, then we are prepared, if necessary,

 9     to refile it and --

10             JUDGE ORIE:  But if there is no issue taken with it, then

11     admission under Rule 94 bis might equally well serve the purpose as to

12     take judicial notice of it.

13             MR. MISETIC:  Yes, that's correct, and we refile it -- if the

14     Chamber wishes, we'll do that as well.  Obviously our intention is to

15     rely on the substance of the report, not just that there was a report

16     filed in another case.

17             JUDGE ORIE:  No.  And -- well, to take judicial notice of

18     documents, of exhibits, I know that it's -- in the rule, creates more

19     questions than it answers, I'm afraid.  Therefore, as I said before, it

20     is not an uncontroversial issue.  Therefore, the Chamber would prefer to

21     have this matter be dealt with under Rule -- I always forget.  94 bis is

22     the expert reports.

23             As far as timing is concerned, I take it that since the report

24     was produced in another case before by the Prosecution, I think that that

25     might not be a great problem.

Page 20712

 1             MR. RUSSO:  Mr. President, we will respond.  If there is a 94 bis

 2     filing we will respond to that.  However, I can't say for certain that we

 3     won't object under 94 bis with regard to relevance.  That is still to be

 4     determined.  I'm not saying that we're going to -- issues of

 5     qualification, of course, are not going to be objectionable, but there

 6     are other areas under 94 bis under which we might wish to respond.

 7             JUDGE ORIE:  Yes, and having extended the time-limit -- well, I

 8     don't think that we could expect a motion today.  But perhaps could you

 9     give it already some thought, because, well, with some imagination you

10     could expect what the motion under Rule 94 bis would tell you.

11             Is there any way that the Defence -- that the Prosecution could

12     -- or would you need the full three weeks, Mr. Russo?

13             MR. RUSSO:  Mr. President, I don't believe we would need the full

14     three weeks.  We will file a submission on an expedited basis.

15             JUDGE ORIE:  Thank you very much.

16             MR. MISETIC:  Mr. President, with your leave if we could just

17     file a notice indicating that we're -- that the report that was filed, I

18     believe, yesterday or the day before yesterday, is now being filed

19     pursuant to Rule 94 bis, so as to save us filing another 100 pages.

20             JUDGE ORIE:  Yes.  I don't think that there is any need to have

21     it all copied again and that you change the basis under the Rules under

22     which this report is filed now to 94 bis, rather than Rule 94.  That's on

23     the record.

24             I think the only matter, then, remaining is that we could try to

25     shorten the MFI list a bit.  But before we start doing so, is there any

Page 20713

 1     other procedural matter the parties would like to raise at this moment?

 2             If not, let's see whether we can cut off some of the MFI list.

 3             The first one on my list is D1083.  I do understand that a final

 4     translation has been uploaded by now.

 5             Mr. Mikulicic, I see you nodding yes.

 6             MR. MIKULICIC:  Yes, Your Honour, we agreed upon this with OTP.

 7     And as I have been instructed, this is only matter of time when the final

 8     translation would be uploaded due to the technicals issues that --

 9             JUDGE ORIE:  Yes --

10             MR. MIKULICIC:  -- has to be completed.

11             JUDGE ORIE:  Yes, but there is agreement on the translation;

12     there's no objection against admission.

13             MR. MIKULICIC:  That's correct, Your Honour.

14             JUDGE ORIE:  Under those circumstances, if it is already in the

15     hands of the technicians, under those circumstances in the expectation

16     that upload would go be completed shortly, the Chamber admits into

17     evidence D1083.

18             If anything happens which in any way interferes with the

19     uploading, Mr. Mikulicic, it would be your duty do inform the Chamber.

20             MR. MIKULICIC:  I understand, Your Honour.  Thank you.

21             JUDGE ORIE:  Thank you.

22             The next one is D1460.  Gotovina Defence would review the maps

23     and ensure that all the targets from the Jagoda target list would -- are

24     depicted on the maps and that they are all correct.

25             On the 22nd of May the Gotovina Defence and the Prosecution

Page 20714

 1     agreed on the updated maps, and it was a matter of updating those maps

 2     into e-court

 3             Has this been completed?

 4             MR. KEHOE:  Mr. President, we have done that, and we provided it

 5     to Mr. Russo, albeit somewhat late, but I think he is just reviewing it

 6     now.

 7             MR. RUSSO:  That's correct, Mr. President, we received it earlier

 8     today.  It should be no problem within a few days to advise the Chamber.

 9             JUDGE ORIE:  But there was agreement on the updated maps.  It was

10     just a matter of uploading, or was it ...

11             MR. KEHOE:  It's a matter of giving Mr. Russo the opportunity to

12     just review it consistent with the other maps.  And I have to take

13     responsibility that we didn't give it to him sooner.  So that's not his

14     fault; it's ours.

15             JUDGE ORIE:  Yes, then it remains on our MFI list for the time

16     being.

17             Could we hear from you with the same expediency as you heard from

18     Mr. Kehoe.

19             MR. RUSSO:  Yes, Your Honour.

20             JUDGE ORIE:  Then we will not deal with D1465 for the time being,

21     because the Chamber is waiting, whether any other portions of the Mladic

22     diary will be used when other witnesses will be examined, and, therefore,

23     I think that would be the selection criteria.  Unless you would say we've

24     done with all of it, Mr. Misetic.

25             MR. MISETIC:  Mr. President, there are portions of it that I had

Page 20715

 1     on the list for General Mrksic.  Because of the amount of time I had

 2     spent, I didn't put to him what some of Mr. Mladic's comments about

 3     General Mrksic, nor did I think that there was any anything particular

 4     useful in asking him to comment on it.  But I would ask that those

 5     portions also, and they are from the days of Operation Storm through the

 6     end of August, be included as well.

 7             JUDGE ORIE:  So that adds to the portions we have looked at up --

 8     until now.

 9             MR. MISETIC:  Yes.

10             JUDGE ORIE:  And have you identified those portions so that the

11     Prosecution is aware which portions they are?

12             MR. MISETIC:  I have not.  I will do that, Mr. President.  I also

13     -- comes to mind I did use certain portions of that book.  We started

14     with Mr. Lazovic, and did I put meetings in Belgrade with General Mrksic.

15     So it would be the portions I showed Mr. Lazarevic, the portions that

16     were put to General Mrksic at the end of June and early July, and then

17     the Operation Storm period.

18             JUDGE ORIE:  And you do not expects any further use of this diary

19     for the witnesses to appear in late August and early September?

20             MR. MISETIC:  That is correct, Mr. President.

21             JUDGE ORIE:  Then you're invited to finally consolidate the list

22     of portions which are tendered into evidence.  We will then hear from the

23     Prosecution whether there are any objections, and the Chamber can decide.

24             I skip a few other -- no, let me go by them.  D1508, we'll not

25     deal with it at this moment.  Same is true for D1531.  Then on our list,

Page 20716

 1     D1540 through D1546 were dealt with in the decision I read out today.

 2     The same is true for D1551, D1552, and D1567.

 3             We will not deal with D1569.

 4             D1607, the 92 ter statement of Sterc we have dealt with earlier.

 5             Then I move to P462.  By mistake, in an earlier stage, this

 6     received an exhibit number, but it was then set back again to being

 7     MFI'd.  There was some confusion about mixing up the 9th and the 11th of

 8     August, as the dates of the meetings the transcripts are about.  Finally,

 9     the Prosecution took the position that they wanted to tender into

10     evidence the 9th of August transcripts as P461, and, finally, there were

11     translation issues in relation to that.

12             What the Chamber would like to know is whether the 9th of

13     August transcripts have been uploaded in B/C/S and whether there are any

14     remaining translation issues.

15             MR. HEDARALY:  No, Mr. President.  We have -- we have sent them

16     over to the Defence several weeks ago now.  They had agreed the proper

17     version is uploaded, and the translations as well were uploaded for P462.

18             So it is ready to be admitted into evidence.

19             MR. MISETIC:  Mr. President, if I may, I'm confused now.  Are you

20     speaking of P461 and 9 August, or P462 and 11 August?

21             JUDGE ORIE:  I think I'm talking about P462; nevertheless, in

22     relation to 9 August, because I think that portions of the 9th of

23     August were -- were mixed up with the -- there was some confusion about

24     the 9th and the 11th.  If -- Mr. Hedaraly --

25             MR. HEDARALY:  There was initially two transcripts that were

Page 20717

 1     portions quoted in the same exhibits.

 2             JUDGE ORIE:  On [Overlapping speakers] ...

 3             MR. HEDARALY:  About two separate dates.

 4             JUDGE ORIE:  Yes.

 5             MR. HEDARALY:  The one that we have tendered that we have sorted

 6     out and discussed with the Defence was the 11 August, those are the

 7     transcripts at P462, that is what has been uploaded, that is what has

 8     been shown to Ms. Skare Ozbolt, I belive, when she testified as well, as

 9     she was present at that meeting.  So initially both the 9 August and

10     11 August portions of both those meetings were in P462.  We have removed

11     the 9 August portions from P462, and P462 now contains the portions that

12     we tender of the 11 August 1995 meeting, not the complete meeting,

13     portions of them, and those had been agreed with the Defence.  And I'm

14     glad that Mr. Misetic caught the date, the discrepancy, but we are in

15     agreement that the 11th August meeting, portions of them should be P462.

16             JUDGE ORIE:  Yes.  I don't just do these things on the top of my

17     head.  There is some contradiction with what I have in front of me.

18     We'll verify that.  We'll check that in the transcript pages.  It may

19     well be a mistake within the Chamber's support team or by the Chambers.

20     We'll verify it.

21             P462 remains MFI'd.

22             Anything to be added Mr. Misetic or ...

23             MR. MISETIC:  I'm advised of another issue, but I don't have time

24     at the moment, Mr. President, if there's a problem --

25             JUDGE ORIE:  Is that also in relation to P461 and 462?

Page 20718

 1             MR. MISETIC:  462, I'm told.

 2             JUDGE ORIE:  462.  Then the parties are invited in informal

 3     communication with the Chamber staff to point at any issues around that

 4     so that we can resolve them.  But let's leave them untouched at this very

 5     moment.

 6             Next one is P2547.  We have dealt with that one already.

 7             Same is true for 2548, 2549, 2551.

 8             Next one on my list is P2569, a report of Amnesty International.

 9     A selection would be made of what would be tendered into evidence, and

10     there were some problems because the B/C/S translation was not yet

11     complete of the relevant pages.

12             Has that been uploaded by now?

13             MR. HEDARALY:  Yes, Mr. President.

14             JUDGE ORIE:  Then there were no objections by the Cermak Defence.

15     Do the Gotovina Defence or the Markac Defence have any objections against

16     these selected portions of this Amnesty International report?

17             MR. MISETIC:  No, Mr. President.

18             JUDGE ORIE:  Mr. Mikulicic, I see you're also nodding no.

19             P2569 is admitted into evidence.

20             Then next on my list is P2585.  That is the -- an analysis of

21     conduct on Operation Storm.  The issue was that it was introduced without

22     -- it was shown to the Defence before, and no questions were asked about

23     it to the witness.

24             MR. KEHOE:  Mr. President, if I could just short circuit this.  I

25     believe this is the document, and Mr. Russo help me out, I think counsel

Page 20719

 1     attempted to bar table it at that point.  I just asked for a period of

 2     time to review it, and I do believe I sent an e-mail to Mr. Russo saying

 3     I had no objection to the admissions.

 4             Ed, is this the exhibit?

 5             MR. RUSSO:  I think that's correct, yeah.

 6             MR. KEHOE:  So we had no objection, and I think Mr. Russo advised

 7     Chambers that we had no objection.

 8             THE INTERPRETER:  The interpreters kindly ask the speakers to

 9     slow down.

10             JUDGE ORIE:  We were advised that there were no objections which

11     means that P2585 is ready to be admitted and is admitted into evidence.

12             Then the last one on my list is -- are related to Stjepan Sterc.

13     We'll deal with that at a later stage.

14             Also -- let me see.  Yes, we'll not deal with them at this very

15     moment.

16             This concludes then we have at least been able to shorten the MFI

17     list considerably.

18             Any other matter to be raised at this moment?

19             MR. KAY:  There's one matter concerning the Rule 68 motion filed

20     by the Cermak Defence, I think at the end of May, Your Honour.  This also

21     has an impact on the scheduling for the case, because of the work

22     required on our part to analyse and present materials to enable the

23     issues in the case that we seek to rely upon to be put before the

24     Trial Chamber using Rule 92 bis.  We have been able to conduct some of

25     these analyses already from materials we've had access to and that are

Page 20720

 1     publicly available.  Those relevant witnesses form a considerable part of

 2     our Rule 65 ter (G) filing as to our witnesses, but that is in terms of

 3     quantum rather than court time, as the Court appreciates the use of the

 4     92 bis system for corroborative evidence and the related provisions.

 5             I'm conscious that I have a case that will be, say, two months,

 6     eight weeks, seven weeks, eight weeks, and when I come to close the

 7     Cermak Defence case, it has been my intention to use the last day as the

 8     92 bis day when all the relevant procedural requirements are performed in

 9     court, so that we have our live evidence first, and then the structure,

10     as I see it, is best served by having the 92 bis evidence right at the

11     end.  And I'm doing it for that reason because I'm conscious that there

12     may be further disclosure to us, as there has been thus far.  And such

13     projects, I know, take a considerable amount of resources and time, and

14     I've had to make financial provision to ensure that and hire a new member

15     of staff to take that particular task on from within -- to assist my

16     team.

17             I don't want to be in the position, when concluded my case, of

18     saying to the Court, I'm sorry, we just have not had time to review this

19     material and make an appropriate filing.  I think that that would be

20     unsatisfactory, probably.

21             So I -- I do flag this up before the Court, as something that

22     members of my team who are dealing with this, have constantly raised with

23     me, and I'm a little bit concerned now as we're getting ever closer to

24     the start of our Defence case, and I want to make sure that we have

25     everything in proper place for our window of opportunity to present our

Page 20721

 1     evidence.

 2             JUDGE ORIE:  Yes.  This is therefore mainly to inform the Chamber

 3     about what you're doing at this moment rather than to require the Chamber

 4     to take any action at this moment.

 5             MR. KAY:  We're looking to the Chamber for a decision.

 6             JUDGE ORIE:  Yes.

 7             MR. KAY:  And in a, I hope, gentle way.

 8             JUDGE ORIE:  You would appreciate if you didn't have to wait too

 9     long.  Isn't that --

10             MR. KAY:  Of course, Your Honour, yes, and Your Honours'

11     colleagues.

12             JUDGE ORIE:  Any other matter?

13             There being nothing on the agenda anymore, we will adjourn, but I

14     would first wish to everyone in this courtroom that they will have -- and

15     I know how difficult it is sometimes to relax during this holiday time.

16     I'm also aware that those who are in detention, even if not here, of

17     course, it is different for them, especially those who have to stay here.

18     Nevertheless, I wish everyone a good four weeks to come, three weeks of

19     recess and one week of not sitting.

20             And we resume on Monday, the 24th of August, 9.00 in the morning,

21     Courtroom III.

22                            --- Whereupon the hearing adjourned at 1.48 p.m.,

23                           to be reconvened on Monday, the 24th day of August,

24                           2009, at 9.00 a.m.